The autonomy defense of free speech

Ethics

Volumn 108, Issue 2, 1998, Pages 312-339

  Brison, Susan J ^a  

^a NONE

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EID: 0002422030     PISSN: 00141704     EISSN: None     Source Type: Journal    
DOI: 10.1086/233807     Document Type: Article

References (180)

1. See David A. J. Richards, "Autonomy in Law," in The Inner Citadel: Essays on Individual Autonomy, ed. John Christman (New York: Oxford University Press, 1989), pp. 246-58. Richards also considers autonomy to ground the right to free speech, as well as defendants' rights under the criminal law. According to Richards, "Autonomy is a core value in American public and private law, since it is one of the constitutive ingredients of the generative idea of background rights of the person to which interpretive controversy in American law characteristically appeals" (p. 246).
2. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 48-51, 169-74.
3. Rogers M. Smith refers to these rights, as well as the right to free speech and the right to privacy relied upon in recent Fourth and Fifth Amendment cases, as grounded in "the fundamental value [of] autonomy," in "The Constitution and Autonomy," Texas Law Review 60 (1982): 175-205, p. 175. In this article, Smith analyzes what he takes to be "a broad and basic transformation in liberal political theory, and correspondingly in American constitutional thought, that has given a new centrality to autonomy concerns" (p. 176).
4. I use the term "free speech" to cover freedom of the press as well. Autonomy defenses of free speech can be found in David A. J. Richards, "Autonomy in Law," "Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment," University of Pennsylvania Law Review 123 (1974): 45-91,
5. "Pornography Commissions and the First Amendment: On Constitutional Values and Constitutional Facts," Maine Law Review 39 (1987): 275-320,
6. "Toleration and Free Speech," Philosophy and Public Affairs 17 (1988): 323-36;
7. Ronald Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985),
8. "Liberty and Pornography," New York Review of Books (August 15, 1991), pp. 12-15,
9. "Women and Pornography," New York Review of Books (October 21, 1993), pp. 36-42,
10. "The Coming Battles over Free Speech," New York Review of Books (June 11, 1992), pp. 55-64;
11. Thomas Scanlon, "A Theory of Freedom of Expression," Philosophy and Public Affairs 1 (1972): 204-26,
12. "Freedom of Expression and Categories of Expression," University of Pittsburgh Law Review 40 (1979): 519-50;
13. Charles Fried, "The New First Amendment Jurisprudence: A Threat to Liberty," in The Bill of Rights in the Modern State, ed. Geoffrey R. Stone, Richard A. Epstein, and Cass R. Sunstein (Chicago: University of Chicago Press, 1992);
14. David Strauss, "Persuasion, Autonomy, and Freedom of Expression," Columbia Law Review 91 (1991): 334-71;
15. Martin H. Redish, Freedom of Expression: A Critical Analysis (Charlottesville, Va.: Michie, 1984);
16. C. Edwin Baker, "Scope of the First Amendment Freedom of Speech," UCLA Law Review 25 (1978): 961-90,
17. Human Liberty and Freedom of Speech (New York: Oxford University Press, 1989);
18. Diana T. Meyers, "Rights in Collision: A Non-punitive Compensatory Remedy for Abusive Speech," Law and Philosophy 14 (1995): 203-43;
19. Thomas Nagel, "Personal Rights and Public Space," Philosophy and Public Affairs 24 (1995): 83-107.
20. Kent Greenawalt, who criticizes some attempts to ground free speech in the singular value of autonomy, nonetheless appeals to autonomy as one of "the subtle plurality of values that does govern the practice of freedom of speech." Kent Greenawalt, "Free Speech Justifications," Columbia Law Review 89 (1989): 119-55, p. 119.
21. Robert C. Post, "Managing Deliberation: The Quandary of Democratic Dialogue," Ethics 103 (1993): 654-78, p. 666.
22. For a selected list of reported incidents of hate speech on college campuses from 1986 to 1988, see Howard J. Ehrlich, Campus Ethnoviolence and the Policy Options (Baltimore: National Institute against Prejudice and Violence, 1990), appendix.
23. For discussions of incidents of hate speech through 1991, see Laura J. Lederer and Richard Delgado, eds., The Price We Pay: The Case against Racist Speech, Hate Propaganda, and Pornography (New York: Hill & Wang, 1995).
24. Susan Brownmiller, Against Our Will: Men, Women and Rape (New York: Bantam, 1975), p. 443.
25. For numerous examples of pornography that could be construed as hate speech under this definition, see the analyses of pornography in Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.: Harvard University Press, 1987),
26. Only Words (Cambridge, Mass.: Harvard University Press, 1993),
27. Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1993);
28. Attorney General's Commission on Pornography, Final Report, U.S. Department of Justice, July 1986;
29. Laura Lederer, ed., Take Back the Night: Women on Pornography (New York: Wlliam Morrow, 1980);
30. Catherine Itzen, ed., Pornography, Women, Violence and Civil Liberties (New York: Oxford University Press, 1992); and Lederer and Delgado, eds.
31. Quoted in Charles R. Lawrence III, "If He Hollers Let Him Go: Regulating Racist Speech on Campus," in Mari J. Matsuda et al., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, Colo.: Westview, 1993), p. 67. The Stanford code was struck down by the court because of the Leonard Law which requires even private educational institutions in California to abide by the U.S. Constitution.
32. Doe v. University of Michigan, 721 F. Supp. 852, 856 (E.D.Mich. 1989). This is a partial definition taken from the University of Michigan policy on discrimination and discriminatory harassment, a policy which was ruled unconstitutional in Doe v. University of Michigan. This definition was based on existing sexual harassment law prohibiting "hostile environment" harassment. See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
33. Beauharnais v. People of the State of Illinois, 343 U.S. 250 (1957) at 251.
34. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
35. See, e.g., Kenneth Lasson, "Group Libel versus Free Speech: When Big Brother Should Butt In," Duquesne Law Review 23 (1984): 77-130.
36. Doe v. University of Michigan; UWM Post v. Board of Regents of the University of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991).
37. For the U.S. Court of Appeals, 771 F.2d 323 (7th Cir. 1985).
38. Ibid., p. 329. One doesn't, however, hear the courts declaring that if segregation harms minorities' opportunities for equal rights this simply demonstrates the power of freedom of association.
39. Doe v. University of Michigan, 721 F. Supp. at 853.
40. Ibid., p. 863.
41. R.A.V. v. St. Paul, 120 L.Ed.2d, 305 (1992). Justice Scalia's opinion raises too many issues for me even to begin to discuss them here, but I examine them in my Speech, Harm, and Conflict of Rights (Princeton, N.J.: Princeton University Press, in press).
42. As Nagel observes, "The censorship of a fanatical bigot is an offense to us all." He makes it clear that he is "not just talking about the more ridiculous excesses of political correctness, but about the prohibition of hard-core, intentional expressions of hostility." See Nagel, p. 98.
43. As Lee Bollinger notes, "There is a curious disjunction in our attitudes about the degree to which we should tolerate the speech of others. When we compare our reluctance to impose legal restraints against speech with our readiness to employ a host of informal, or nonlegal, forms of coercion against speech behavior, the paradox is striking." Lee Bollinger, The Tolerant Society (New York: Oxford University Press, 1986), p. 12.
44. I defend this claim in "Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence," forthcoming in Legal Theory.
45. For discussions of the nature of the harm of hate speech, see also Frederick Schauer, "The Phenomenology of Speech and Harm," Ethics 103 (1993): 635-53; Matsuda et al.;
46. Kent Greenawalt, Speech, Crime, and the Uses of Language (New York: Oxford University Press, 1989), pp. 292-301;
47. Robert C. Post, "Racist Speech, Democracy, and the First Amendment," William and Mary Law Review 32 (1991): 267-327, pp. 271-77.
48. Justice Hugo L. Black, Smith v. California, 361 U.S. 147, 157 (1959). See also his article, "The Bill of Rights," New York University Law Review 35 (1960):865-81.
49. Schenck v. United States, 249 U.S. 47 (1919).
50. Fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942).
51. Libel is printed defamatory speech that impeaches the reputation of an individual, exposing him or her to hatred, contempt, ridicule, or financial injury. At times, group libel has also been unprotected. Group libel is speech that "exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots." Beauharnais v. People of State of Illinois, 343 U.S. at 251. Beauharnais, though never formally overturned, is no longer considered to be authoritative. Group libel is now considered to be constitutionally protected speech. After New York Times Co. v. Sullivan was decided in 1964, it became extremely difficult for public figures to win libel suits, since the Court determined that "the constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a defamatory false-hood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. at 279-80. Libel of private individuals continues to be less protected, however.
52. 'Obscenity' is defined as works that "appeal to the prurient interest in sex . . . in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political or scientific value." Miller v. California, 413 U.S. 15 (1973).
53. See, e.g., Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328 (1986).
54. Although the ordinance adopted by Stanford University touched only hate speech that counts as fighting words, it was recently struck down by the courts, since Stanford employs a definition of "fighting words" that is no longer considered good law, and since, although Stanford is a private institution, it is forbidden by California's "Leonard Law" to violate constitutionally protected rights.
55. See R.A.V. v. St. Paul and Corry v. Leland Stanford Junior Univ., California Superior Court at Santa Clara, case no. 740309, February 27, 1995.
56. For example, Canada and most Western European countries have laws prohibiting speech that incites or promotes racial hatred. See Bollinger, pp. 253-56.
57. Quoted in Mari Matsuda, "Public Response to Racist Speech: Considering the Victim's Story," University of Michigan Law Review 87 (1989): 2320-81, p. 2349.
58. Stanley Fish, There's No Such Thing as Free Speech: And It's a Good Thing, Too (New York: Oxford University Press, 1994).
59. For discussions of the costs of hate speech to its victims and proposals for compensating them, see Frederick Schauer, "Uncoupling Free Speech," Columbia Law Review 92 (1992): 1321-57;
60. Meyers, "Rights in Collision."
61. Fish clearly means to assert both senses of his ambiguous title. Others who argue that no justification can be given for a free speech principle are Lawrence Alexander and Paul Horton, "The Impossibility of a Free Speech Principle," Northwestern University Law Review 78 (1984): 1319-57.
62. Frederick Schauer, Free Speech: A Philosophical Enquiry (New York: Cambridge University Press, 1984), pp. 7-8.
63. Greenawalt, "Free Speech Justifications," p. 120.
64. Scanlon, "A Theory of Freedom of Expression," p. 204.
65. John Milton, Areopagitica (1644; reprint, New York: New York University Press, 1968);
66. John Stuart Mill, On Liberty (1859; reprint, Indianapolis: Hackett, 1978); Oliver Wendell Holmes, dissenting, in Abrams v. United States, 250 U.S. 616, 630 (1919).
67. Mill.
68. Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (New York: Harper, 1948),
69. Political Freedom (New York: Harper, 1960);
70. Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1993);
71. Owen Fiss, "Free Speech and Social Structure," Iowa Law Review 71 (1986): 1405-25.
72. Vincent Blasi, "The Checking Value in First Amendment Theory," American Bar Foundation Research Journal, no. 3 (1977), pp. 521-649;
73. Schauer, Free Speech;
74. Richard A. Epstein, "Property, Speech, and the Politics of Distrust," in Stone, Epstein, and Sunstein, eds.
75. Bollinger; David Lewis, "Mill and Milquetoast," Australasian Journal of Philosophy 67 (1989): 152-71.
76. Nadine Strossen, "Regulating Racist Speech on Campus: A Modest Proposal?" Duke Law Journal (1990), pp. 484-572;
77. Thomas I. Emerson, The System of Freedom of Expression (New York: Vintage, 1970). Emerson includes this along with a number of other defenses of free speech.
78. The slippery slope argument is the one I hear most often from students and popular commentators. Judges are also fond of it. Judge Pell used a slippery slope argument in an appellate court opinion striking down the Village of Skokie's ordinance prohibiting dissemination of material which "promotes and incites hatred against persons by reason of their race, national origin, or religion, and is intended to do so." Collin v. Smith, 578 F.2d 1197, 1199 (1978). Pell argued that "the ordinance could conceivably be applied to criminalize dissemination of The Merchant of Venice," Collin v. Smith, 578 F.2d at 1207. In discussion (April 6, 1990), Lewis characterized his own defense of free speech in "Mill and Milquetoast" as a version of the slippery slope argument, but I think it is more accurately characterized as a version of the argument from tolerance.
79. Greenawalt, "Free Speech Justifications";
80. Joshua Cohen, "Freedom of Expression," Philosophy and Public Affairs 22 (1993): 207-63;
81. Thomas I. Emerson, "Toward a General Theory of the First Amendment," Yale Law Journal 72 (1963): 877-956.
82. See, e.g., Schauer, Free Speech,
83. "Slippery Slopes," Harvard Law Review 99 (1985): 361-83;
84. Alexander and Horton; the recent debate about Mill's theory of free speech in Ethics by David Dyzenhaus, "John Stuart Mill and the Harm of Pornography," Ethics 102 (1992): 534-51;
85. Robert Skipper, "Mill and Pornography," Ethics 103 (1993): 726-30;
86. Richard Vernon, "John Stuart Mill and Pornography: Beyond the Harm Principle," Ethics 106 (1996): 621-32;
87. Greenawalt, "Free Speech Justifications." As Greenawalt warns, however, we should be wary of strategies that attempt to eliminate certain reasons for free speech by showing that they are "applicable to things other than speech" since a "reason that applies to other subjects may apply with special intensity to speech; various reasons may coalesce in a unique way with respect to speech" (p. 126).
88. This argument has been given by R. Dworkin, Scanlon, Richards, Fried, Strauss, Baker, Redish, Meyers, and Nagel. See references in n. 4.
89. Greenawalt notes that not all versions of the argument from autonomy are non-consequentialist in nature, although his classification of these versions differs from my own. For example, he considers Richards to be a proponent of a consequentialist version, whereas I place him in the nonconsequentialist camp, since he claims to derive the right to free speech from a moral right to autonomy which functions as a side constraint on governmental interference. Greenawalt, "Free Speech Justifications," pp. 143-45.
90. Cohen, p. 222.
91. Ibid.
92. For the classic discussion of the distinction between "the good" and "right," see John Rawls, "The Priority of Right and Ideas of the Good," Philosophy and Public Affairs 17 (1988): 251-76.
93. See Christman, ed., for an insightful overview of the field and a collection of articles representing a wide range of positions except, unfortunately, feminist theories of autonomy. Feminist accounts include Diana T. Meyers, "Personal Autonomy and the Paradox of Feminine Socialization," Journal of Philosophy 84 (1987): 619-828,
94. Self, Society, and Personal Choice (New York: Columbia University Press, 1989);
95. Lorraine Code, "Second Persons," in What Can She Know? (Ithaca, N.Y.: Cornell University Press, 1991), pp. 71-109;
96. Jennifer Nedelsky, "Reconceiving Autonomy: Sources, Thoughts, and Possibilities," Yale Journal of Law and Feminism 1 (1989): 7-36;
97. Marilyn Freidman, "Autonomy and Social Relationships: Rethinking the Feminist Critique," in Feminists Rethink the Self, ed. Diana T. Meyers (Boulder, Colo.: Westview, 1997), pp. 40-61.
98. Joel Feinberg doubts that "autonomy" has a single meaning, and holds that it has, instead, these four related meanings. Joel Feinberg, Harm to Self, vol. 3 of The Moral Limits of the Criminal Law (New York: Oxford University Press, 1986), pp. 27-51.
99. Isaiah Berlin, "Two Concepts of Liberty," in Four Essays on Liberty (New York: Oxford University Press, 1969).
100. In describing the following accounts of autonomy, I do not mean to be taken as accepting uncritically Berlin's distinction between negative and positive liberty. See Gerald C. MacCallum, "Negative and Positive Freedom," Philosophical Review 76 (1967): 312-32, for arguments undermining Berlin's distinction.
101. Dworkin, "Liberty and Pornography."
102. For a persuasive critique of autonomy as negative liberty, see Virginia Held, Rights and Goods: Justifying Social Action (New York: Free Press, 1984).
103. Dworkin, A Matter of Principle, pp. 353-72.
104. Dworkin also uses this approach in his review of MacKinnon's Only Words.
105. See Ronald Dworkin, "Women and Pornography."
106. Dworkin, A Matter of Principle, p. 353.
107. Dworkin, A Matter of Principle, Ibid., p. 359.
108. Dworkin, "The Coming Battles over Free Speech," p. 58.
109. For arguments that hate speech (including pornography) violates the rights of its victims, see MacKinnon, Feminism Unmodified, Only Words, Toward a Feminist Theory of the State; and Matsuda et al.
110. Rae Langton has given a perceptive analysis of MacKinnon's claim that pornography silences women, thereby depriving them of their free speech rights, in "Speech Acts and Unspeakable Acts," Philosophy and Public Affairs 22 (1993): 293-330.
111. See also Rae Langton's "Whose Right? Ronald Dworkin, Women, and Pornographers," Philosophy and Public Affairs 19 (1990): 311-59, in which she argues that given the conflict posed by pornography between liberty and equality, Dworkin's own account of liberal equality can be used to justify restrictions on pornography.
112. Scanlon, "A Theory of Freedom of Expression," p. 213. (Although Scanlon calls this "the Millian Principle," it owes more to Kant than to Mill.)
113. See Matsuda et al.; Lederer and Delgado, eds.; and Charles R. Lawrence III, "The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism" Stanford Law Review 39 (1987): 317-88.
114. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism Stanford Law Review 39 (1987): 317-88. Ibid.
115. I defend this claim in Speech, Harm, and Conflicts of Rights.
116. Beauharnais v. People of the State of Illinois, 343 U.S. at 263. See also Cass R. Sunstein, "Social Norms and Social Roles" Columbia Law Review 96 (1996): 903-68, for a discussion of the ways social norms, meanings, and roles, constructed largely through speech, affect our views about and actions toward others.
117. Victim blaming is a common feature of our society, perhaps because of a deep-seated, if irrational, belief that we live in a basically just world in which people get what they deserve. See William Ryan, Blaming the Victim (New York: Pantheon, 1971);
118. Melvin J. Lerner, The Belief in a Just World: A Fundamental Delusion (New York: Plenum, 1980).
119. Scanlon, "A Theory of Freedom of Expression," p. 216.
120. In a later article, he employed a revised autonomy account to argue against restrictions on hate speech (as in the proposed Skokie march) and pornography. See Thomas Scanlon, "Freedom of Expression and Categories of Expression," University of Pittsburgh Law Review 40 (1979): 519-50. This revised account will be discussed next.
121. Nagel, p. 96. Nagel points out that his autonomy defense of free speech "is close to the argument Scanlon offers for his principle of free expression, except that his argument goes through the conditions of legitimacy in the exercise of state power, and its conclusion is a limit on legal restrictions of expression rather than a general moral right" (p. 97). Nagel argues that the right to free speech is a general moral right, that is, a universal human right. Nagel still owes the skeptic, however, an argument for why the right to free speech should be considered to be a universal human right. Fried has also argued against restrictions on hate speech and pornography by appealing to autonomy. In a recent article he states, "Freedom of expression is properly based on autonomy: the Kantian right of each individual to be treated as an end in himself, an equal sovereign citizen of the kingdom of ends with a right to the greatest liberty compatible with the like liberties of all others." Charles Fried, "The New First Amendment Jurisprudence: A Threat to Liberty," in Stone, Epstein, and Sunstein, eds., p. 223.
122. It is not entirely clear from the article just what Fried means by "autonomy," but a plausible interpretation is that he has in mind something like the account Scanlon gives in "A Theory of Freedom of Expression."
123. Robert Amdur, "Scanlon on Freedom of Expression," Philosophy and Public Affairs 9 (1980): 290.
124. Scanlon, "A Theory of Freedom of Expression," p. 212.
125. Scanlon, "Freedom of Expression and Categories of Expression," p. 532.
126. See MacKinnon, Feminism Unmodified;
127. Lawrence, "The Id, the Ego, and Equal Protection."
128. Greenawalt, Speech, Crime, and the Uses of Language, p. 115. See also pp. 32-33 and 265. Amdur makes a similar point in arguing that "autonomous citizens, deciding whether to grant the state authority to regulate thought and discussion, would not only think of themselves as potential speakers and listeners, examining different views and deciding what to believe and when to obey the law. They would also think of themselves as potential victims of harms brought about by acts of expression." Amdur argues persuasively that rational, autonomous individuals would not "demand anything as strict as the Millian principle." See Amdur, p. 299.
129. Scanlon, "A Theory of Freedom of Expression," p. 218.
130. Scanlon, A Theory of Freedom of Expression, Ibid., p. 221.
131. Scanlon, "Freedom of Expression and Categories of Expression," p. 533. Richard H. Fallon calls this concept of autonomy "descriptive autonomy." The accounts (1-3) above would presumably be classified as accounts of "ascriptive autonomy." According to Fallon, "Ascriptive autonomy - the autonomy that we ascribe to ourselves and others as the foundation of a right to make self-regarding decisions - is a moral entailment of personhood," whereas "descriptive autonomy refers to the actual condition of persons and views autonomy as partial and contingent" (p. 876).
132. Richard H. Fallon, "Two Senses of Autonomy," Stanford Law Review 46 (1994): 875-905. As I argue in this article, there are more varieties of autonomy invoked in the free speech literature than just these two. Furthermore, I question whether any defense of "ascriptive autonomy" could be given that did not refer to the more fundamental value of "descriptive autonomy."
133. Scanlon, "Freedom of Expression and Categories of Expression," p. 534.
134. Berlin.
135. Harry Frankfurt, "Freedom of the Will and the Concept of a Person," in The Importance of What We Care About (New York: Cambridge University Press, 1988), p. 12. Although Scanlon himself does not invoke Frankfurt's account of autonomy, it is the position in the philosophical literature on autonomy that appears to be closest to the view Scanlon invokes in this later article on free speech. It may be of some interest to note that Frankfurt himself has commented (in conversations during the spring of 1995) that he does not think his account of autonomy can be used to defend free speech.
136. For example, Scanlon's account of autonomy.
137. Frankfurt, "Freedom of the Will and the Concept of a Person."
138. See also Harry Frankfurt, "Three Concepts of Free Action," "Identification and Externality," and "Identification and Wholeheartedness," all in The Importance of What We Care About.
139. Gerald Dworkin, The Theory and Practice of Autonomy (New York: Cambridge University Press, 1988). See pp. 15-17 for his reasons for rejecting the endorsement account.
140. Richards, "Free Speech and Obscenity Law," p. 62.
141. Richards, "Rights and Autonomy," in Christman, ed., p. 205.
142. Strauss.
143. This is a somewhat misleading objection to Strauss, since he does present an argument of sorts, although I do not think it is successful. He argues along Kantian lines that restricting speech classified as "persuasion" (i.e., speech appealing to reason) violates autonomy in the same way that lying does, but I am not persuaded by his claim that only governmental, and not private, restrictions on speech violate autonomy in this way.
144. Scanlon, "A Theory of Freedom of Expression," p. 216. Although Scanlon makes this point in this earlier article, it also applies to the view defended in his later article.
145. In one passage of "Freedom of the Will and the Concept of a Person," Frankfurt acknowledges that "when an agent is aware that there are certain things he is not free to do, this doubtless affects his desires and limits the range of choices he can make" (p. 20). Elsewhere, however, he describes his view of freedom of the will (what I and others call his account of "autonomy") in an ahistorical manner which does not take into account the conditions on the formation of first order desires and second-order desires and volitions. For example, on p. 22, he asks us to suppose that someone "enjoys both freedom of action and freedom of the will. Then he is not only free to do what he wants to do; he is also free to want what he wants to want. It seems to me that he has, in that case, all the freedom it is possible to desire or to conceive." On this account of autonomy, even a woman confined to a harem all her life, with no awareness of - and no desire for - any alternative kind of existence, must be considered to have "all the freedom it is possible to desire or to conceive."
146. G. Dworkin.
147. See Schauer, Free Speech;
148. Virginia Held, "Access, Enablement, and the First Amendment," Philosophical Dimensions of the Constitution, ed. Diana T. Meyers and Kenneth Kipnis (Boulder, Colo.: Westview, 1988), pp. 158-79;
149. Judith Lichtenberg, "Foundations and Limits of Freedom of the Press," Philosophy and Public Affairs 16 (1987): 329-55.
150. For an argument that more choice is not always better than less, see G. Dworkin, pp. 62-81.
151. For a discussion of the ways in which private pressures can constrain speech as effectively as governmental regulation, see Frank Michelman, "Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation," Tennessee Law Review 56 (1989): 291-319.
152. See Lichtenberg, "Foundations and Limits of Freedom of the Press";
153. Held, "Access, Enablement, and the First Amendment," p. 172.
154. C. Edwin Baker discusses the seriously distorting effects of advertising on access to speech in Advertising and a Democratic Press (Princeton, N.J.: Princeton University Press, 1994).
155. Abrams v. United States, 250 U.S. at 630-61, (Holmes, J., dissenting) (emphases added). Holmes's claim that the principle of free speech embodies "freedom for the thought we hate" (United States v. Schwimmer, 279 U.S. 644, 655 [1929] [Holmes, J., dissenting]) also suggests an absence of agency behind the instilling and shaping of thoughts, in addition to asserting that it is thoughts rather than (or along with) their expressions that are protected by the principle of free speech.
156. Scanlon, "Freedom of Expression and Categories of Expression," p. 521.
157. Scanlon, Freedom of Expression and Categories of Expression Ibid., p. 527.
158. Scanlon, Freedom of Expression and Categories of Expression Ibid., p. 528.
159. For discussions of how hate speech can disorder reason, see the articles in Matsuda et al.
160. For further discussion of this point, see Brison, "Speech, Harm, and the Mind-Body Problem."
161. See Langton, "Speech Acts and Unspeakable Acts";
162. MacKinnon, Feminism Unmodified;
163. Jennifer Hornsby, "Speech Acts and Pornography," in The Problem of Pornography, ed. Susan Dwyer (Belmont, Mass.: Wadsworth, 1995), pp. 220-32.
164. Baker.
165. Redish.
166. See the numerous examples in Matsuda et al.
167. For defenses of this kind of account of autonomy, see John Christman, "Autonomy and Personal History," Canadian Journal of Philosophy 21 (1991): 1-24;
168. Joseph Raz, The Morality of Freedom (New York: Oxford University Press, 1986);
169. Cass R. Sunstein, "Preferences and Politics," Philosophy and Public Affairs 20 (1991): 3-34;
170. Meyers, "Personal Autonomy and the Paradox of Feminine Socialization," and Self, Society, and Personal Choice; Code; Nedelsky; and Friedman. This concept of autonomy has not, however, been explicitly discussed in the free speech literature, although Meyers suggests, in "Rights in Collision," that the right to free speech is grounded in the combined values of autonomy (presumably of this variety, since this is the account she defends elsewhere) and democracy.
171. Jon Elster, Sour Grapes (New York: Cambridge University Press, 1983);
172. Amartya Sen, Inequality Reexamined (Cambridge, Mass.: Harvard University Press, 1992). See p. 55, where he discusses the effects of entrenched inequalities and deprivations on preferences.
173. See also Meir Dan-Cohen, "Conceptions of Choice and Conceptions of Autonomy," Ethics 102 (1992): 221-43.
174. This example comes from Simone de Beauvoir's memoirs, in which she recalled arguments she had with Jean-Paul Sartre in 1940 about his account of freedom as an active transcendence of one's situation. She had maintained that not every situation offered the same scope for freedom: "what sort of transcendence could a woman shut up in a harem achieve?" Simone de Beauvoir, The Prime of Life (New York: World, 1962), p. 346.
175. As Sunstein puts it, "The notion of autonomy should refer . . . to decisions reached with a full and vivid awareness of available opportunities, with reference to all relevant information, and without illegitimate or excessive constraints on the process of preference formation." Sunstein, "Preference and Politics," p. 11.
176. As Raz argues, "If having an autonomous life is an ultimate value, then having a sufficient range of acceptable options is of intrinsic value, for it is constitutive of an autonomous life that it is lived in circumstances where acceptable alternatives are present." Raz, p. 205. See also pp. 373-80.
177. For a defense of this account of autonomy and an application of it to free speech issues, see Susan J. Brison, "Relational Autonomy and Freedom of Expression," in Relational Autonomy:Feminist Perspectives on Autonomy, Agency, and the Social Self, ed. Catriona Mackenzie and Natalie Stoljar (New York: Oxford University Press, in press).
178. Owen Fiss, in arguing for a more activist role for the government in the regulation of speech, urges us to "begin with the fact of state intervention in economic matters, and then use that historical experience to understand why the state might have a role to play in furthering free speech values." See Owen Fiss, "Why the State?" Harvard Law Review 100 (1987): 781-94, p. 783.
179. Aaron Director, "The Parity of the Economic Marketplace," Journal of Law and Economics 7 (1964): 1-10, p. 5.
180. See also R. H. Coase, "The Economics of the First Amendment: The Market for Goods and the Market for Ideas," American Economic Review 64 (1974): 384-91.