Liberalism, Free Speech, and Justice for Minorities
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Joel Feinberg’s political philosophy is to twentieth century thought what John Stuart Mill’s was to that of the nineteenth century, the classic contemporary articulation of the moral demands of the liberal conscience. Feinberg, like Mill, has focused on that subclass of demands imposing limits on the criminal law as a distinctive form of political power requiring justification. Those demands are of two sorts: the specially stringent limits on the criminalization of expressions of conscience and speech, and the general limiting principles on the criminalization of acts in general. Feinberg, like Mill, has sought to articulate common principles governing both areas, for example, principles requiring some showing of harm or offense to others as a necessary condition of criminal liability. Presumably, such principles would, if plausible, explain the special burden of justification required to justify abridgement of expressions of conscience or speech in contrast to acts in general. For example, the criminalization of conscience might, on grounds of the harm principle, more often illegitimately fail to satisfy this principle than criminalization of acts in general. That fact, if it is a fact, might explain why the abridgement of conscience more often fails to satisfy the demands of liberal principle than the criminalization of acts as such, and thus the special stringency of the political principles limiting the abridgement of speech. The idea of a unified liberal theory of this sort is subject, however, to two kinds of objections, one internal to the project, the other external. The internal objections queries whether anything so simple as the harm principle can explain the special protection liberalism extends to conscience and speech. For example, much speech harms people, and many self-regarding acts harm no one, so the special protections of speech in contrast to action seems misplaced on grounds of the harm principle. Something more by way of principle is apparently required to justify the characteristically liberal concern for protection of conscience and speech. The external objections does not infer from such consequences of the reasonable interpretation of the harm principle that the principle is itself questionable, but on the ground of the harm principle questions the liberal project itself, in particular, the protection liberalism accords forms of conscience and speech that apparently work injustice on minorities. The classic example of such harmful speech has been blatantly racist and anti-Semitic speech, speech that libels a group by falsely attributing to members of the group morally degrading characteristics; a more recent example to similar effect is pornography that allegedly libels women as such by falsely attributing to them a morally degrading sexual availability, including desires to be raped. If the harm principle limits criminalization to speech or actions that on balance inflicts harms on persons, group libel, sot the external objection goes, inflicts such harms; and thus the liberal protection of such speech is misplaced. Sometimes, this external objections is expressed as a more general critique of liberal individualism and neutrality on the ground that its intrinsically atomist and abstract modes of argument fail to capture, indeed render invisible and inarticulate, the distinctive forms of injustice that racism and sexism inflict on minorities. Liberalism and these claims of injustice work, as it were, at cross purposes; and liberalism, because it cannot give these claims the weight they deserve, must yield place to political theories less wedded to its internal ideals of individualism and neutrality. I want to offer here a critical response to the external objection that addresses its central concern, the nature and weight of the distinctive injustices inflicted by racism and sexism and the remedies appropriate to such injustices. The two questions—the nature of the substantive injustice and its remedy—are fundamentally integrated, as the external objection itself makes clear. It is precisely because the external objections interprets the injustice of racism and sexism in a certain substantive was that it takes the prohibition of the harm inflicted by group libel as a remedy appropriate to ending that injustice. My argument will be, to the contrary, that the proper analysis of the injustice of both racism and sexism necessarily makes reference to rights-based liberal political theory and that the appropriate remedies for such evils must reasonably respect the basic rights (including free speech) on which their critical analysis stands. I begin with the analysis of the evil of racism and examine the constitutionality of group libel laws from that perspective, and then offer a similar discussion of sexism and corresponding constitutional doubts about antipornography laws.
Source Publication
In Harm's Way: Essays in Honor of Joel Feinberg
Source Editors/Authors
Jules L. Coleman, Allen Buchanan
Publication Date
1994
Recommended Citation
Richards, David A. J., "Liberalism, Free Speech, and Justice for Minorities" (1994). Faculty Chapters. 1917.
https://gretchen.law.nyu.edu/fac-chapt/1917
