[This is the title page for Part
III, together with Chapter 10 that follows it, of Murphey’s book Emergent
Man:]
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Chapter 10
LIBERTY: DISCURSIVE AFFAIRS
For several centuries the most intense
political conflict concerned the liberty of a man to speak freely and to have
his own thoughts on religion. During the first half of the twentieth century
the conflict between liberty and coercivism has centered far more on economic
issues. We have gone far in building economic regimentations that at least in
their sticky authoritarianism are similar to the church and monarchical
institutions against which men struggled so painfully for so long. It is worth
stressing again that the great underlying issue remains one of intellectual
liberty, the uncoerced freedom to apply ones mind and energies to the
subject-matter of his life. But while the underlying issue is the same, at least
to some extent the scene of the battle has changed. The basic issue has taken
on a new face.
Even though the most controverted issues are
presently economic and may therefore draw the most attention, the philosophy of
liberty is hardly preoccupied with economic principles, but instead is
concerned with all aspects of life, including men’s "discursive
affairs," as I will label them here. These are the matters that pertain to
ideas and emotions and their communication. In this essay I hope to discuss the
principles that a sound libertarian philosophy would contain with respect to
these affairs.
The
first principle of liberty, of course, in any area of concern, is that men
ought not to be coerced and should therefore to be able to do anything they may
choose, as guided by their own intelligence and preferences, and that this vast
area of freedom ought then to be circumscribed by principles of limitation only
if and when they are found to be needed
so as to remove coercive pressures and protect corridors of action that will
themselves be sufficient to give men a chance to enjoy wide
expressiveness. [Note in 2001:
The preceding sentence states the principle that informs my entire analysis in Emergent
Man of the structure of a free society.
The undertaking is to deduce the appropriate rules that will guide a
society based on individual liberty, with only such limitations as are called
for in service to the broadest realization of liberty. My analysis causes me to consider a number
of interests that should be accommodated simultaneously. What the analysis does not do is to
consider, as one of the desiderata, the broad cultural flavor of the
society. As I have indicated in an
earlier note, events in the United States after 1960 later caused me to see
that “liberty,” far from necessarily meaning vigorous striving for nobility and
achievement, can descend into the “do your own thing” dissipation and
degeneracy that have characterized the counter-culture and its aftermath. This cultural decline (much of it
originating in the attack on middle-class values by the Left) is in many ways
inconsistent with the health of a free society. Accordingly, a more complete inquiry into the prerequisites for
liberty needs to be broader than I made it in Emergent Man. In my later books, I stressed how important
“an appropriate intellectual culture” is to a free society, as distinct from
the culture of alienation that has prevailed in artistic-literary-academic
circles for what is by now almost two centuries. Such an appropriate intellectual culture would raise, not lower,
the standards in virtually all areas of life.
This chapter on “discursive affairs” gives an important part of the
needed discussion, but it would be valuable to add to it an enlarged concern
about what the institutions and culture are that are needed for a free
society. There is another facet to
consider, too: that what I was doing in Emergent Man was to think
through a model for how a free society works.
This considers the subject without regard to a particular time, place or
people. Most of my later writing is
historical and sociological, seeing issues in the context of cause-and-effect
within a particular civilizational setting.
This adds important elements, themselves important to a philosophy of
liberty, that the analysis of a model does not incorporate.]
Having postulated this general rule of
freedom, we come to the question of whether there are any necessary principles
of limitation, and of what they might be. Principles of limitation are called
for, if at all, to resolve conflicts between inconsistent interests. Since
several types of conflict arise out of the discursive aspect of life, I have
thought it best to break down the analysis into such parts as will help
separate the types of conflict from one another. We will look first to problems
involving unspoken thought, and then will examine such limitations on the
general liberty as may be necessary because of conflicts arising from the
"mental" aspect of communicated thoughts, as contrasted with
conflicts that arise because the words have provoked overt action that itself
causes injury to existing interests. This last type of conflict will arise, I
will say, out of "inciting" speech, and we will discuss this type of
speech last.
Unspoken Thoughts
In uncommunicated thought -- that which exists only in a person’s mind without expression to others -- there can be no offense by one man against the personal sensitivities of another. No hurting of feelings or organizing of outward conduct -- beyond the conduct of the thinking man himself -- can come out of it. The man might brood by himself as a single individual and, without any expression of the thought in words, burst into violent criminal action: in this sense, the unexpressed thought may provoke a destructive act. But on the whole the thought, so far as social conflict is concerned, is like an inert gas, not touching on outward life at all until it takes shape as either bodily action or speech.
We see, then, that while it is
generally isolated, the unspoken thought may, depending on its content, have a
destructive potential. The question arises: Are we to formulate a principle of
limitation applying to unspoken thoughts in order to root out and protect
ourselves beforehand from the offensive conduct that might be caused by them?
Which is to say, can we feasibly call a man into court or into a star chamber
and question him as to his private thoughts, and punish him for certain of them
when at last they are revealed? Is it possible to do this and still preserve
our general freedom? Obviously the answer is that we cannot. At least this is
the general answer, though as we shall see there are complications that are not
so easily resolved. Suffice it to say that a principle allowing wide- spread
inquiry into a man's private thoughts would open the door not only to a very
bothersome harassment, but also to inhibitive pressures that would soon stifle
the freedom that any legitimate limitation seeks to protect. The resulting limitation
on liberty, instead of aiding the overall maximization of freedom and the
enjoyment of it in all areas, would swallow up the liberty itself, leaving
little or nothing behind. It is far better, then, if we wish to control the
conduct that may stem from the unspoken thought or the speech that may result
from it, to act directly against these things themselves, and not seek out the
thought in its unspoken state. Needless to say, of course, by acting directly
against these more outward products, we will tend to influence the thoughts
that precede them. But at least such influence would involve no general
intervention into people’s private thoughts.
While this may seem very simple and needlessly elementary, even in an essay -- such as this one -- in which the hope is to discuss fundamentals, it is not really as simple as it may appear. In this very connection, an almost insoluble problem arises concerning the involuntary commitment to institutions of persons claimed to be mentally ill. Here, the question is very much concerned with a man's unspoken mental make-up. It is true that the problem of commitment arises only after the person's mentality has become in some way conspicuous through his conduct or speech; but is it not true, too, that the psychotherapeutic task involves exploring thoroughly his entire mentality and that this overall mental content is what must be inquired into in order to determine in the first place whether he should be institutionalized against his will?
This whole matter would not be philosophically
significant to the extent that it is if it were really possible to separate off
this problem and say that “mental illness is a special case.” Because, however, of the great vagueness of
the whole "mental illness" concept, it is entirely possible that this
is an area in which coercive practices may impinge greatly on the libertarian
principle postulated above that no coercive pressure ought to be brought to
bear by the State or by ones fellows because of a person's unspoken thoughts.
The vital core of this matter pertains to the
problem of insuring that the concern over mental health does not become so
broadly diffuse that an excuse is developed for a very extensive inquiry on an involuntary
basis by courts and medical boards into the recesses of a person's mind. Nor
must this concern over mental health, even if it does not grow into a monster
of psychoanalytic meddling, be permitted to work oppression in individual
cases. The genuine concern of the philosophy of liberty involves, then, two
things here: (1) the scope of the definition of "mental illness" for
which involuntary commitment is ordered, and (2) the procedures by which the
determination is to be made in individual cases that given persons are to be
institutionalized against their will.
As
to the first of these, we must ask: "What scope is to be given to the term
'mental illness?’" Quite obviously this raises intense philosophical
difficulties. The problem is not nearly as easily surmounted as we might hope.
There is no congealed mass of medical
opinion that is in general agreement as to what is and what is not
"healthy" in. the working of the human mind. True, there may be certain highly palpable
instances of mental disintegration where all of us might agree that the person
is indeed deranged and would be better off if changed. If, for example, a woman were to sit and
weep for days on end, we might generally agree that she is ill and that
therapeutic measures are in order. But how really do we decide what is a
"palpable" disorder? We really do not know, and the great advantage
of the “palpable” case is that it is so obvious that we feel relieved of
assigning reasons. As to other degrees of mental disorder, we are not aided by
so strong an intuitive sense. Here, the philosophical difficulties arise in
their full force. And even if there were a "congealed mass of medical
opinion" classifying the in-between areas as either "illness" or
"healthiness," we could hardly by this appeal to expertise avoid the
problem, since we would merely be passing the buck and would -- if we wished an
honest facing of the matter -- have to examine carefully the premises upon
which the medical experts would make their decision.
A person who is sensitive to the twists and
turns of subjective life -- and the essential validity of a trillion individual
perspectives as developed in individual human beings each of whom has undergone
a slightly different experience from his fellows -- realizes with great force
the numb insensibility there is in any philosophy or any psychology that would
presume to approach the variations of the human mind with anything but the most
profound humility. Such humility was singularly lacking in Freud. He presumed
to draw conclusions where several -- perhaps a great many -- theories could
have served just as well and where there was absolutely no way critically to
decide between the many possible hypotheses. Epistemologically, his conclusions
as to the subconscious were without basis. One must seriously wonder whether
there might ever be a critical methodology that would apply to the study of the subconscious. Controlled
experiments are impossible; introspection involving immediate personal knowledge
of ones own subjective self is excluded by definition from a study of the
subconscious. And this is as true of all branches of psychology that purport to
explain the subconscious as it is with the writings of Freud.
This book contains several heresies, and it
will be necessary to add to them -- if we are intelligently to consider the
problems inherent in the involuntary commitment of the mentally ill -- yet
another. And this is, as indicated above, to doubt the soundness of the modern
"science" of psychology and the wisdom of assigning to it an accepted
status as a really respectable area of learning. It is true, surely, that man's
subjectivity is well worth study, and that a critical methodology might well
apply and bring some important discoveries in the physiological aspects of
psychology, in the introspective area, and perhaps in others: I would
discourage no one from undertaking the study of this fascinating subject. But
have we not, however, in fact created a vast body of modern nonsense that --
for all its "sophistication" -- can hardly be called better than
"scientific superstition"? If the methodology is not critical, if it
is not utterly sensitive to the immense complexity of the human spirit and the
effect of this complexity on the ability of men to draw conclusions about it,
then we do -- whatever we may want to say about it -- have such a superstition
growing in our midst.
I do not say these things because I relish an
attack on a respected area of intellectual endeavor. It is necessary to say
these I things because they show how carefully we must tread in this matter of
commitment of those persons whom some of us, perhaps even the great majority of
us, would consider mentally ill.
There
is yet another aspect of this that must lead us great caution and humility. It
is that even if we were with total competency able to classify subjective
behavior and to determine the cause-and-effect relations in it, we would be no closer
to the ultimate solution of our problem, for we would then find it necessary to
exercise that God-like judgment that says "this is good" and
"this is bad" about the quality of a person's life. I need hardly
point out that one of the principal impulses motivating a lover of liberty is
the fear of exercising just such a judgment. No true poet would ever undertake
to exercise such presumption. Personally, I do not know the solution to this
quandary: I have nothing to suggest that will allow us blandly to decide
"this mind needs reworking; that one does not" in light of the
incredible presumption that is involved in any such judgment. Of course, I have
mentioned the "palpable" cases, to which I might add the cases where
such knowledge as there is indicates the presence in the individual of a
serious propensity to behave violently or in other ways antisocially. Perhaps
we can limp through with these as the crux of our limitations on the freedom of
the mind: leaving all other cases alone unless the person himself seeks psychotherapy.
Other than this, what really are our choices? The only alternative is to
indulge the presumption (as though there were not some presumption in deciding
what is "palpable") and to consider ourselves capable, with all of
the immense profundity that is required, of selecting what is healthy and what
is not healthy about the inner essence of specific f1esh-and-blood men.
In all probability this latter course is the
one that will be followed. We will, as we have in the past, both at Salem
during the witch-burning era and in modern times through psychiatric inquiry,
presume ourselves fitted to decide these matters of essence. One must merely
say that if this is so we must -- if we are concerned about the effect on
liberty -- urge an appreciation for the validity of multiplicity and urge a
consequent narrowness in the scope of the intervention into the privacy and
sanctity of the soul. [Note in 2001:
As I read the foregoing section now, I am bothered by how abstruse it all
is. I have to remind myself, and will
remind readers, that my purpose was not to entertain readers, but to argue
deductively from first principles. The
discussion was made necessary by the desire to touch on all areas, speaking to
the principles that should guide them.
My concerns were with the possible abuse of the concept of “mental
illness” as we have seen it in the Soviet Union, where dissidents were
incarcerated in mental institutions and, as I pointed out, in Salem at the time
of the belief in witchcraft. The
current ideology today that brands some very legitimate expression as “hate
literature” raises similar concerns.
Thus, the subject is important to an overall philosophy of liberty.
If I were writing the passage anew, I would
want to add a discussion of the practical issues that mental illness raises,
and that are addressed by our courts, to safeguard a mentally ill person from
the losses and personal harm that can come from being unable to conduct his own
affairs, and to protect other people from harm by that person. These practical issues are far less abstruse and raise less
possibility of abuse-of-liberty, which may be why I passed over them in the
earlier discussion.]
These
thoughts have all borne on the scope of the intervention. It is necessary, too,
to give careful thought to the methods by which
we first inquire into a man's private thoughts to see whether he falls within
or without the classifications we might establish. This involves procedural
questions. And procedural safeguards are frequently as essential as substantive
limitations in the protection of man's liberty.
I have remarked earlier that it would not be
compatible with liberty to bring a man into court and inquire into his ideas
and then punish him for them. But in its practical features, though not in its
purpose, there is little real difference between this and the bringing of a man
into court to inquire into the shape of his mind and the consequent sending of
him away, against his protests, to a mental institution. The practical aspects
of these are the same insofar as they both involve a strong potential aspect of
what is analogous to "illegal search and seizure." I do not mean the question emotionally or
rhetorically, but practically, when I ask: Who is safe from a charge of mental
illness and resulting institutionalization? The answer is that no one is safe, unless
sound libertarian principles are written into the law that will be applied
before the courts from day to day, and unless, indeed, provision is made for
the safeguard of a hearing before such an impartial and liberty-conscious
tribunal as a court. Must it not be that if there are to be adequate
protections that will keep the whole area of "mental health" from
encroaching vitally on the sanctity of individual liberty there will have to be
a procedure that will in its most significant aspects treat the matter as very
similar to a criminal prosecution?
Before
a man's mental processes may be even so much as inquired into there must
certainly be the equivalent of what is "probable cause" in a criminal
case. And this must be so even though the purpose is not to incarcerate a man
as punishment for some act committed with moral fault, but is rather done with
-- let us assume without any qualms -- the intention of helping the man
himself. The threat to liberty is much the same, and the purpose does not
obviate the need for a proper foundation to
be laid before formal inquiry is made leading to involuntary commitment. Of what must this "probable
cause" consist? To choose an illustration, might we say that an affidavit
sworn to by one person that the other person has "acted peculiarly"
sufficient ground for further inquiry?
The asking of the question superficially seems to call for a negative
answer, but what if a man's wife were to come in and swear that he has been
acting like a raving beast -- is that enough to set the procedure on its way?
To any such questions, it is probably foolish to attempt any all-inclusive,
immediate answer. The idea of "probable cause," though far from
precise, has a fairly definite connotation to a lawyer, built up by a long
history of judicial "inclusion and exclusion." The problem is one of applying the
requirement to individual cases arising under infinite possible
fact-situations. The point is that there ought to be at least a very careful
judicial circumspection before a court will enter upon even the preliminary
inquiry into a man's mental health. The inquiry, in short, should not be
entered upon without good and sufficient reason. The circumspection ought to be
sensitive to the danger that such inquiry, by itself, poses to liberty.
This is enough to give some idea of the
problems, and principles involved in their solution, that arise in connection
with the liberty of a man privately to have his own thoughts. To some extent
this subject has anticipated our later discussion here of restraints upon
discursive activity where they are called for to prevent injurious overt
conduct, since mental illness has – to an important degree -- a causal relation
so far as destructive conduct is concerned.
Spoken Thoughts in Their Mental Aspect
It is not with unspoken, but rather with
communicated thought that the foremost problems of limitation on the general
liberty arise. Spoken ideas are no longer boxed off in the mind of the speaker.
They lose their inert separation and become a part of the social environment.
In so doing, they may become offensive in several ways, and this offensiveness
will make it necessary to decide -- in the balancing of conflicting interests
-- whether a limitation on speech is warranted.
If the offensiveness arises out of mere
disagreement between the speaker and his listener, no restraint of the speech
could be justified to remedy this conflict unless we were willing to dissolve
the general liberty and force agreement to a specific point of view. Because of
this consequence which would come out of restraint imposed because of
disagreement by itself, it is clearly a principle of liberty that disagreement
alone cannot be made the ground for the inhibition of speech. This is so
elementary that in a time and place in which the freedom of speech is a natural
part of the way of life it seems hardly necessary to mention it. However, such
a basis has often in history been the reason for suppression of ideas as spoken
or written.
Speech may cause a
conflict of interests either because it causes men to take action of a certain
form, which in turn entails the conflict, or because the language is by itself
injurious to some other interest that men may cherish. As an example of the
first, the speech may incite to murder, revolution or riot; as an example of
the second, it may impinge on a man's interest in the inviolability of his
reputation as against falsehood, or upon his interest in privacy. In this
latter, there is not necessarily an element of incitement to action. The effect
is offensive even though it touches on no more than a mental aspect. Of course,
it is true that any given language may both incite to action and involve a
mental aspect, combining the two possible sources of conflict.
At this point we are concerned with speech in
its mental effects, as distinct
from its inciting aspect. We must look to see what sort of mental consequence
is involved and then weigh this
-- if the effect involves a conflict of interests -- against the desirability
of unrestrained speech. The problem involved in this weighing may be brought closer to solution if we look, as well, to
see whether the particular sort of speech is such that if it were inhibited no
significant corridor of communication would be shut off. If, for example, the
inhibition would merely circumscribe the quantity and volume of speech while
still leaving for each man a very ample means by which he may pass on to others
his ideas on a given subject about which he may choose to speak, then the
inhibition would not seriously affect speech as a category of liberty. This lack of serious effect is something to
take very much into consideration in the "weighing" process that is
involved in arriving at the moral or political rule adjusting the conflict of
interests. I have in mind the following sort of illustration: An ordinance
might make unlawful a man's loud shouting in a residential neighborhood late at
night in the absence of excuse for the shouting, such as to wake the residents
to warn them of a nearby fire. The weighing problem in such a case is: Which is
it most important for the free society to protect, the freedom to shout without
justification late at night, or the interest men have in being able to sleep
undisturbed? Certainly it will be readily apparent that to inhibit the speech
in this instance will not be to close off any significant corridor of human
discourse. The man is limited thereby in no way that bars him from the full
exposition of his ideas, even though the law requires that he must not perform
his exposition in this particular manner. He still has vast opportunity to let
people know his thoughts. This lack of significant practical limitation upon
the effective area of liberty is an important factor to be considered in our
determination of whether or not the inhibition would be beneficial. The result of these considerations is that
the philosophy of liberty would not go amiss in supporting such an ordinance
limiting speech in the manner involved in this illustration. The philosophy
-- though a philosophy of liberty -- is
not inconsistent in taking such a position, because in its practical effect
this position, even though it embraces an inhibition, resolves the conflict of
interests in favor of the most general and meaningful liberty of all. The
"disturbance of the peace" ordinance I have mentioned acts of
"maximize" liberty for the society as a whole, since the peaceable
enjoyment of the life mated to liberty -- as by the enjoyment of undisturbed
sleep -- is surely as much a part of liberty as the freedom of speech itself.
Such speech as we are talking about now, which
does not incite to action, may impinge upon several interests and thereby
create a conflict of interests. As I have already suggested, two of these might
be the interest in personal reputation and the interest in privacy. A third may
be an interest in freedom from profane or sexually "obscene"
language. These interests are "intangible," but are nevertheless
valued for strong personal reasons.
As to reputation, it is obvious that the
injury to reputation may result from speech that merely makes known the truth
as to what the man spoken about has actually done, or --on the other hand --
that it may result from the utterance of falsehood or half-truths.
Historically, Anglo-American law has distinguished between these categories,
and has allowed "truth" to be a complete defense to an action for
defamation, although the law has placed the burden of persuasion on the speaker
to prove to the judge or the jury that the remarks injurious to reputation were
in fact true. The burden is not on the person spoken about to prove that the
statement is false. This state of the law would seem properly to express a
libertarian position. The speech may be left unpunished if it expresses the
truth about a man, and this will make it incumbent upon the man himself so to
conduct his actions that the truth about them, if told, will not defame him.
The infliction of injury where truth is spoken is more a matter of self-abuse
than of the actual infliction of injury by the speaker, though of course it
must be admitted that both the conduct and the commentary upon it are sine
qua nons, in such a case, to the injury. Here, it is perhaps best to
leave the speech unrestrained. If we were to limit all factual remarks that
tend to diminish the esteem in which a man is held, we would eliminate all
criticism, and do great harm to the general freedom of discussion. (As we will
see in a moment, the law in some jurisdictions will act against speech even if
it is true if it unduly impinges on a person's privacy. I will discuss this
separately.)
With the utterance of defamatory lies and half-truths, however, both the law and sound libertarian principles reach a conclusion that inhibition is warranted. Here, the person defamed cannot avoid the injury by more discreet conduct of his own. He may, in fact, suffer the injury even though his life has been in all ways exemplary. And there is an additional factor to be considered, too. It is that such statements are not to be considered a significantly necessary part of that communication that men need in order to have a broad intellectual interchange among themselves. Inhibition here serves the interest of inviolable reputation while not threatening to close any significant corridor of communication. Perhaps it should be remarked, however, that the law has allowed even falsehoods to go without legal remedy where the speech is of a sort to which the law imputes a "privilege," although certain types of privilege are qualified so that they are not recognized if the words are uttered with "malice." I do not think that libertarian philosophy is particularly concerned with the detail of such limitations so long as it arises out of a balancing of interests with a view to making possible a social order that in turn provides a general liberty and protects the beneficial consequences of it from dissipation by the reckless use of liberty. When we get down to this degree of particularity about principles, it is obvious that no one formulation is necessarily required by a philosophy of liberty; several may fill the need equally well, and what is needed more than anything is that the law settle upon one of them and provide a rule of law as to it so that men may guide their actions in advance to meet the requirements of the principle adopted.
We
have next to consider the interest that men have in privacy. The question is
whether speech ought to be inhibited, even if what it states is true, if it
publicizes the facts of a person's life as to things that would otherwise
remain private. Anglo-American law has not provided a civil or a criminal
remedy against invasions of privacy until relatively recent times. During this
century, however, some states have -- by a questionable process of judicial
legislation -- adopted a so-called "right of privacy" which declares
it to be a tort (a "civil wrong" for which damages or other relief
may be recovered) to "unreasonably" disturb the privacy of another.
As with the law of defamation, the breach is condoned in certain cases of
privilege, as where the person whose privacy is invaded is a public figure who
has by his prominence "waived," so to speak, his private nature.
This area is one in which there would seem to
be serious possibility of significant limitation on the general freedom of
speech unless any inhibitory principle that is adopted is carefully limited in
scope. Comment on persons and their activities is an important part of ordinary
speech. We should be most careful before we close off any portion of it. The
law of defamation already gives legal protection in a closely related field,
and may be said to go far toward eliminating the worst abuses where there is an
overlapping of the interests in reputation and privacy.
Still another thing to think about is that
privacy is an area as to which we might conceivably spell out with some
specificity the types of privacy that seem most in need of protection, and not
just state vaguely that "unreasonable" invasions of an equally vague
category of "privacy" are subject to legal protection as against
speech. We should ask ourselves: "What particular varieties of privacy are
so important that they ought to be protected against speech, with the
concomitant limitation on the freedom of speech, even though the speech is
truthful?" In answer to this
question, we might submit that a person's sex life is of this sort: the value
of freedom of other persons to discuss it is not commensurate with the value of
privacy here, and therefore an inhibition of speech would seem justified in the
protection of privacy in this regard.
But what other areas of a man's life really call for such protection
from inquiring eyes? Needless to say,
the interest in privacy is very pervasive and goes much deeper than sexual
privacy, but the problem is to specify particular areas to which the inhibition
of speech may apply without opening the door to a broad, general inhibition of
an ill-defined character. It may be
that several other categories of privacy can be enumerated, as for example the
privacy of telephone conversation free from wire-tapping, and that in such
cases a balancing of interests may call for the inhibition of speech or other
activity as to them. Legislators may
properly decide such matters without their particular solution being prescribed
by the general philosophy of liberty. What libertarian philosophy might well
warn against is a broad inhibition of speech or other conduct whenever a judge
or jury finds a person's privacy to have been "unreasonably"
invaded. "Reasonableness"
tests are to be avoided where specific enumeration of evils is possible, since
one of the more important premises of the libertarian philosophy must
necessarily be that the law should be as little vague as is practicable. It is
dangerous to the general liberty of speech to provide for the inhibition of
speech, even by no more than civil remedies, whenever a jury thinks it
"reasonable" to do so. Since such latitude is not neces- sary for the
alleviation of the worst abuses, and since privacy is -- though concededly very
important -- a somewhat amorphous matter of sensitivity without such objective
shape as would facilitate the steady application of the law, and since speech
in this area is of some considerable importance as a category of communication,
my personal feeling is that it is most compatible with maximum liberty to let
speech go unrestrained except as to specifically enumerated types of privacy
that are of a sort that, because of prevailing social conditions, involve in
ordinary persons a high sensitivity to the need for privacy.
A conflict of interests arises out of the
mental aspects of speech in still another area, though here there is the
additional factor that the speech is thought to have an important element of
incitement to undesirable conduct. I
refer to the problem of "obscene" or "pornographic" manifestations
of sexuality. All sex is covered by a taboo. This is true even though in recent
years it has become increasingly acceptable to discuss it in certain ways. Sex
is a major force running pervasively through life, but it is acted upon and
molded by a powerful aura of obscenity. Sex is obscene just as is the soul of
the emergent man. It is contained as something silent within the four walls of
the private consciousness, hidden away though potent, and is regarded as an
obscenity when it is openly manifested.
[Note in 2001: This was still true as late as 1960 when
this was written.]
For sex to occupy such a place is certainly at
odds with the initial presumption of the libertarian ethic, which is that all
life is to be encouraged and all corridors of human expression opened. We must
inquire whether there exist reasons sufficiently compelling as to rebut this
usual presumption. Certain restraints are necessary. But restraints of an
ethical nature are not tolerable unless called for by the sturdiest of reasons.
A mere distaste for a certain part of life is assuredly not enough.
I am of the opinion that reasons of such
strength do not exist. There are several elements lying behind the inhibition
of sex, but the most important of these -- so far as rebutting the presumption
is concerned -- is a very strong sense that human sexualityof religion. To the
philosophy of emergence, sex is ennobling and worthy. This is, of course,
subject to the qualification that the person harmonize his or her sexuality
with the remainder of the complex of life in which he or she is involved. The
failure to make it consistent with the remainder of ones values may well turn
it into a destructive force. But though it is not inevitably a blessing, it has
the great potential of being one of the most eloquently meaningful parts of
life. To conceive of it in this manner is to contradict flatly the emotion that
abhors carnality. To this view, human sexuality is very far from being an evil per
se. It may become an evil because it is lived in a way that produces
destructive effects on human relations, but it is not unworthy in itself. The emergent perspective would strongly
condemn the view that sex is low and unworthy and deny the corollary of that
debased view, the corollary that says that the expression of sexuality should
be considered obscene.
We find ourselves, therefore, far afield from
the ordinary starting place in evaluating "obscene" statements,
books, movies and the like. We are far afield because we have denied the
fundamental premises of the usual view: the propriety of the aura of obscenity
that has been wrapped around sex, and the thought that this sense of its
obscenity should enter strongly into our ethical considerations. If limitations
are called for as to the expression of sexuality, we will have to look for
other and better reasons to support them. And neither will we make up such
reasons if they do not exist.
Are there such reasons? The answer must
certainly be that there are. One such reason exists in the fact that many
persons have strong sensitivities repugnant to the frank expression of
sexuality; and even though these sensitivities are not properly a basis for a
general inhibition, they are at least the legitimate source of an inhibition
that might so take into consideration these feelings as to say that such
persons shall not be made to be a captive audience for the expressions they
abhor.
The law and ethics can make no proper judgment
of the value of sex, but they may at least take cognizance of ordinary
sensibilities existing in the community and give them protection. It should be
readily apparent how far this differs from a general inhibition based on a
dislike for sex. This would not seek to encroach upon the activity of those who
wish to express their sexuality quite frankly, so long as that activity is kept
the consensual affair of those who wish to do so and does not overlap into and
usurp the equally recognized privacy of those who do not care for such
expression. This carves out an area, which may indeed be a large one, within
which persons who have a sense of the obscenity of sex may move about freely,
without being disturbed in a way that the society in which they live considers
"undue." This area may be defined in varying breadth, and may change
from generation to generation, but one essential element must at all times be
that it is designed to offer protection to the sensibilities that are common
and is not designed for the broader purpose of eliminating the expression of
sexuality. To protect these sensibilities from encroachment, it need go no further than to inhibit those
expressions that would be of such a public nature or intrude so far into the private lives of other persons that the
persons viewing the expression are for all practical purposes given no choice
but to observe it. It is, in other words, a "captive audience"
principle.
To perform sexual acts on a public street
would, for example, be to press forcibly upon the consciousness of all who
happen by in the course of other pursuits. The choice is either to give up
these other pursuits or to view the act. Here, there is a direct conflict
between the interests of the person so acting and the person who dislikes the sight he is caused to
see. Ethics could resolve this conflict
in favor of either, but to resolve it in favor
of the inhibition of the act offers the most satisfactory solution,
since it would permit the act to be done in private, which affords a wide sphere
for such expression, while to tell the person seeing the act "to go indulge your sensitivity in
private" would be to offer little protection to the sensitivity at all.
In concrete terms, we might state the product of this reasoning as follows: Outward public demonstration of sexuality of a sort offensive to commonly prevailing standards may be inhibited. So also may be private demonstrations in which the sphere of privacy is actually that of the person who is caused to observe the demonstration against his will. But those expressions of sexuality that are private to those who desire them may not be inhibited, at least not because of any justification so far discussed. Books and motion pictures and consensual conversation between persons who want to engage in it are all private in their nature in the sense that they have no "captive audience" aspect under usual circumstances: A man may choose to read or not to read a book. If he chooses to read it, he surely may not complain that his sensitivities are offended. As much may be said for motion pictures. Such things may not properly be censored on the ground of offensiveness to sensitivities. [Note in 2001: This reasoning is good so far as it goes. What I did not see when I wrote the foregoing passage, though, was the extent to which broad cultural changes can force millions of people into being a “captive audience” just by the omnipresence of certain messages. In 1960, I believed people could simply choose not to go to a movie or watch a television show that offended them. Since then, however, Americans have been flooded with such things as “the obligatory urinal scene” and a certain ubiquitous four-letter word. This is pressed upon them by the heirs of Mario Savio and the “Free Speech Movement” at Berkeley, who occupy the commanding positions in the entertainment industry. Again, the inquiry into the needs of a free society must go further than my Emergent Man analysis took it. That analysis provides the substratum of my philosophy, but does not define its outer boundaries.]
The use of the mails for the transmittal of
sexual expression may or may not be legitimately inhibited. If the
communication is between persons joined in a private relation where there is
mutual consent to the communication, there is no element of offensiveness. But
if the communication is from the sender to a person who does not welcome the
receipt of such mail, the "captive audience" element is present and
there is encroachment contrary to the protection afforded to the existing
sensibilities. In light of these
thoughts, the criminal provisions pertaining to the sending of pornography
through the mails should certainly be amended insofar as they do not already
require the lack of consent of the recipient as an element of the crime.
Anyone conversant with law will quickly
recognize the close resemblance between the "captive audience"
doctrine I have advanced here and the legal doctrines of nuisance, trespass and
right of privacy. In fact, I have
hardly done more than to extend know from every aspect of life that our
attitudes, derived to a substantial degree from communication with others, mold
our behavior. This introspective awareness of the relation must carry over to
this subject also. The causal relation does exist. But to say this does not
solve the problems we face in formulating an ethic. The attitudes created, and
the causal relation set into motion thereby, may be good or they may be bad:
the causation does not all run in favor of immoral behavior. Indeed, morality
itself is more than a negative, especially where sexual conduct is concerned,
since today there are few means of social enforcement of the ethical norms that
may be proposed and each person is thrown back quite strongly on his own
upbringing and philosophy to control his own actions through
self-discipline. A great deal of
positive discussion of sex is imperative if sound standards are to be
inculcated. And to a considerable extent this discussion will have to express
the premise of the worthiness of carnality as a part of human life. In so
doing, the discussion cannot be expected always to take an academic turn, with
the inert language of science being used.
Literature, poetry and art -- indeed, all forms of human expression --
must come into play. For this to happen
even in the building of the most positive values creates an almost
insurmountable problem in formulating an ethic of restraint based on the causal
relation between the speech and immoral conduct. Endless dispute must
necessarily arise as to what speech merely lays the foundation for a healthy
carnality and a moral view based upon it and what speech actually incites to
immoral behavior. Lawrence's Lady Chatterley's Lover is an excellent
example of the sort of literature over which the disagreement may rage. If a
book or some other expression deals with the subject of sex in down-to-earth
terms, it is almost invariably subject to a plausible charge that it will
incite to immoral action. The potential for such causation is ever-present. And
it is rarely possible to say -- and certainly impossible to say as a general
thing -- that the behavior that may be caused will be of a good or a bad sort.
We have on the one hand, then, a type of
speech that ethically and humanistically is very important. On the other hand,
there is the real but ill-defined possibility that whatever is said may so
arouse the listener that it will cause him to abandon moral conduct. Such a
basis hardly seems sufficient to justify a general condemnation. If not, the possibility of inhibiting only
the most obviously demoralizing types of speech arises. But what are these "types"?
Literature, art and other human expressiveness generally cannot well be
classified into neat pigeonholes as to their effect. A serious practical
problem is involved in saying what speech most surely causes immoral behavior.
Almost every case would depend upon the susceptibility of the listener to moral
volatility and the whole moral and sociological context. All in all, the
subject is so lacking in susceptibility to reasonable delineations that it is
hardly a fit subject for the formulation of ethical mandates. This is even more
true in respect to the application of the criminal law to it, since with
criminal law certainty in terms of what constitutes a crime is a very necessary
element, especially in the eyes of a libertarian, who is concerned about a
man's ability to know in advance what he may and may not do. (In the eyes of an
authoritarian this certainty is of little consequence and even the vaguest
rules are acceptable.)
The description of sexual life of almost any
kind and in almost any way, no matter how much the author may seek to
stimulate, seems to me to fall within the broad area of speech about which the
causal relation is highly speculative. Sexual passion can be raised to as high
(if not higher) a pitch vicariously through the most tastefully artistic
expression as through the most indelicate representation. Unless we seek --
which I do not -- to make the possibility of incitement a sham excuse for
inhibiting the sort of speech -- such as the "indelicate
representation" mentioned above -- that we do not like, there is no good
basis for differentiating between the two in terms of ethical treatment.
There is a type of speech, however, that is
palpably inciting and that avoids these difficulties. I refer to the
solicitation of immoral behavior and to conspiracy to commit it. The connection
with overt action is not tenuous here. Nor are we speaking of a broad category
of speech of important social value. And since the action itself is difficult
to discover and to punish, the inhibition of such speech may be quite useful as
a practical way to prevent the conduct. It would seem that such speech might
properly be proscribed by the ethics of a free society. Of course, the size and
importance of this class of speech depends largely upon the type of behavior
the libertarian ethic judges to be immoral, a matter not yet discussed here.
This category of restraint would be very small, for example, if most forms of
sexual behavior were looked upon with approval by the ethical philosophy.
In substance, therefore,
this review of the "inciting" aspect of speech about sex has added
little by way of additional limitations. While at first blush the
"incitement" element seems to be a broad and plausible reason to
curtail a vast category of expression, a dispassionate consideration of it does
not lead to such a conclusion, at least not when due weight is given to the
importance of the speech, the uncertainty of the causal connection in any given
case and the need for at least some ability to classify given types of speech
as ethical or unethical so that there will be reasonable certainty as to the
content of the ethic itself.
The libertarian ethic formulated in light of
these thoughts will, as we have seen, have important areas of restraint and
important areas of freedom. Certainly the ethic would call for far less
restraint than is presently exercised by society. The most conspicuous forms of
contemporary censorship would be abandoned, since they deal with speech that is
knowingly and voluntarily entered upon both by the speaker and the listener.
But the ethic prevent certain types of action, the action we seek to prevent
must itself be of a sort that the libertarian ethic would judge properly
subject to inhibition. The obviousness of this becomes clear when we consider
that a failure to follow this elementary rule would result in limiting the
freedom of speech for the nonsensical purpose of preventing perfectly
legitimate conduct.
In formulating principles of limitation here,
it is necessary, too, to look cautiously at the strength of the causal
connection between the speech and the action. Lethargy and apathy may cause the
speech to fail to have any effect whatsoever by way of provoking conduct. Or
other influences may be in operation in addition to the speech, and deflect the
speech, so to speak, so that little comes of it. If the causal relation is not
well established and, under the circumstances, likely to exist at all, then the
probability is much greater that in order to prevent a small amount of action
it will be necessary to curtail a large amount of speech, than it would be if
the causal connection were firmly established. The likelihood of causal
connection is an important ingredient when we come to weigh the destructiveness
of the action as against the desirability of non-intervention into speech. It
is the link between the speech and the action.
Yet
another point of major importance is that if the action we seek to prevent
could be controlled sufficiently by the use of coercion directly against it
itself, such direct action may be all that is needed, and there will be no
justification for going back a step further and entering upon a regulation of
speech. The direct action would have accomplished the purpose. But since speech
would remain free concerning the action acted against, there would continue to
exist the opportunity to listen to the arguments on all sides as to its
relative merits and demerits. It is only where no effective control of
undesirable conduct may be had through punitive action placed directly against
the conduct as such, and where -- as mentioned above -- the speech is fairly
likely to be provocative, that speech should be restricted. And even then it may be that because of the
situation existing at any given time and place the undesirable conduct can be
prevented by other means, such as through allowing full discussion that will
make counteracting influences available.
It may seem foolish to place great faith upon
counteracting influences to prevent the conduct from taking form in the face of
speech that tends to provoke it. At least it is foolish to do so in a general
way that pays no regard to the circumstances of a specific case. An implicit
faith in the “inevitable victory of truth over error if they are just left free
to fight it out in the marketplace of ideas” is not only trite in its adoption
of cliches, but is also naively unaware of just how far human beings are from
being entirely "truth-prone.” In
people’s though-processes, correct logical inference and analysis and sincere
intellectual motivation are necessary in the usual attainment of sound
conclusions. There is nothing to indicate that such correctness of reasoning is
inevitable.
It may be that in some situations the actual
prospect that undesirable conduct will be committed is sufficiently remote that
there is little danger in allowing uninhibited speech to continue broadly,
subject only to eventual restriction at such time as it appears that further
speech will in fact provoke the behavior we seek to prevent. Surely the risk
that may properly be taken by way of holding back such restraints as we might
place on speech is greater where the conduct to be prevented is comparatively
less injurious. Greater risk can be taken, for example, in allowing speech to
provoke a minor misdemeanor than in allowing speech to provoke something as serious
as murder, riot or revolution.
These considerations are to be taken into
account in weighing the advantages and disadvantages of applying restraint
against speech in any given instance. Obviously, the criteria mentioned will
not tell us exactly where the line is to be drawn in real-life cases. This is
not particularly disquieting if the decision is made with a sensitive regard
both to the need for liberty as regards speech and to the other liberties that
may call for protection from the behavior that may threaten to encroach upon
them. The need is to let each of these interests have a broad and effective
area within which to find expression and to impose only those limitations that
are called for as a part of accomplishing this purpose.
In American constitutional law the test for
whether restrictions on certain types of speech are valid has been the
"clear and present danger" test. This is just another way of saying
what I have just said here. It requires a danger and a real likelihood that the
speech will actually produce the evil that is sought to be avoided. But, as
with all that we have said, this test gives no clear-cut formula by which all
questions of application may be solved.
The "clear and present danger" test has
probably been applied more often to problems arising out of the control of
internal Communist activity than to any other matter. In light of prevailing
international conditions, the Smith Act is a necessary part of our criminal
law. In the middle of the twentieth century we find that our cities are under
constant threat of attack by missiles carrying nuclear warheads at unbelievable
speeds from launching pads located thousands of miles away. We are faced with
an enemy that has for several decades demonstrated its enmity against all free
institutions and against the United States as the leading expression of
freedom. It is hardly possible to overstate the seriousness of the crisis that
has grown to be a normal part of our modern existence. It is in this context
that the Communist conspiracy conducts its activities, seeking in every way to
aid the Soviet Union in the struggle that is going on. The possible ways by
which such aid may be given are as numerous as the inventiveness of the
Communists themselves can make them. Certainly in such a circumstance the
organized and diligent activity of the Communists to work for the violent
overthrow of our constitutionally established form of government is a source of
extreme danger. The danger is not to be judged as if the Soviet Union were not
present. It is in the context of the world-wide opposition of the two opposing
forces that the conduct of this group is to be judged. And in this context even
the so-called "abstract" endorsement of violent revolutionary
activity, as distinguished from that more concrete endorsement that actually
gets down to the brass tacks of when and how the violence is to be carried on,
is dangerous to a high degree. Even this "abstract" advocacy serves
to prepare an inchoate treason which may take form at any time and implement
the efforts of the Soviet Union in whatever it might undertake. The danger is
clear and it is an immediate one. The risk that is involved is great because
the injury that is threatened is as momentous as liberty and civilization
itself. Unless one has been anesthetized by the complacency that contemporary
intellectualism indulges in about Communism in general, it is difficult to draw
any other conclusion than that it is the imperative function of the criminal
law to operate in curtailment of Communist speech and other conspiratorial activities.
Recently, the Supreme Court of the United
States injected a subtlety into this subject that is unrealistic and hence
quite harmful. It is a subtlety that, failing to appreciate the great danger
and the destructive function performed by Communist preparations, is not at all
in keeping with a libertarian ethic. In Yates v. United States the
court announced that the Smith Act does not apply to such Communist activities
as constitute only the doctrinal advocacy of violent overthrow. But the
difference between such advocacy and a "concrete,"
"inciting" advocacy is hardly more than a hair-splitting fiction.
Both constitute a serious danger. They both meet the "clear and present
danger" test, announced earlier by the Supreme Court. There is no type of advocacy of violent overthrow today that
could not be highly proximate to destructive action.
Certainly it was the intent of Congress in
passing the Smith Act to render criminal even the so-ca1led
"abstract" advocacy of revolution to the extent that Congress could
do so under the “clear and present danger" test. This is apparent from the
language of the Smith Act itself. It outlaws the advocacy of the "duty,
necessity, desirability or propriety" of violent overthrow. Nowhere in
this statutory language is there to be found a nice distinction separating
"concrete" from "abstract" advocacy. Indeed, the language
used strongly negates such a distinction.
Properly considered, therefore, the Smith Act provides the basis
for the trial and punishment of any Communist speech favoring the forceful
destruction of our government. And in so doing, the Act is within the
legitimate confines of the Constitutional power of Congress.
Although
what is Constitutional is not necessarily consistent with a sound libertarian
ethic, the Smith Act is an excellent example of the appropriate application of
the ethical considerations spelled out within the past few pages. First, the
conduct sought to be prevented is of a sort that is itself subject to
restraint. The conduct does not consist of a vague "overthrow of the
government." Such a term is far
from graphic. The conduct consists of murder, riot, espionage, the military
subjection of the United States, the use by the Soviet Union of weapons
information gained through Communist intelligence activities. Second, the
causal connection between conspiratorial speech and such conduct is not at all
remote. The record of the past few years has contained numerous examples of
Communist espionage. Whether the speech provokes the murder and riot I have
mentioned within the near future or at any time depends very much upon what
military steps are taken by the Soviet Union or Communist China. It is true that
such fruition is speculative, depending upon external factors that we cannot
gauge. But we do know that we are in perpetual military crisis with these
countries and that at any given instant the likelihood of war is far from remote.
The presence of persons strongly convinced of the desirability of acting
violently against our free civilization has an important potential under
existing world conditions. Of course, the gravity of the evil and the strength
of the probable causal relation must be considered together. The greater the
evil, the less certain the ultimate culmination of it need be to make desirable
the inhibition of the speech that threatens to lead to it. Third, the injury to
be expected from the conduct cannot satisfactorily be warded off by punitive
action taken directly against the conduct itself when at last it is performed.
Military attack and revolution put into doubt -- place in issue, so to speak
-- the very existence of the criminal
law that would apply the punitive measures. There is no assurance that the
conspirators would be punished at all after entering upon their course of
conduct. If they were successful, there would be no anti-Communist criminal law
that would exist to apply to them.
The reason for applying these various criteria
at all is, of course, that there is great value in leaving speech, wherever to
do so is consistent with the safety of other equally important rights,
unimpaired by legal or ethical restraint. This lack of inhibition is an interest
well worth protecting.
Something might well be said, however, about the place that the freedom of speech occupies among the various interests that require protection. There is an opinion prevalent among orthodox intellectuals today that "civil liberty" consists almost entirely of the freedom of speech and such other "intellectual" freedoms as may be enumerated, plus certain procedural freedoms such as the right to a fair trial. "Economic" liberty, such as the freedom of contract and the right of property, is not awarded a place within the cluster of interests that the contemporary "liberal" considers sacrosanct. In the course of an emotional anti-anti-Communism, moreover, the interests that the "liberal" does choose to defend have been elevated by him to a high level of sacredness, a level which is indeed the proper place of all liberty. One should not consider that in saying this I mean that the contemporary "liberal" has placed these liberties securely at this level: the "liberalism" is altogether too little concerned about overall liberty to be able consistently to do this. What has been accomplished has been an important emphasis on certain liberties in connection with those things that "liberals" have characteristically been interested in defending, and an equally important de-emphasis as to other freedoms. Since the free society is based on an ethic that can be functional in its assurance of general liberty only to the extent that the ethic weighs carefully and reflects the need to provide for all of the innumerable types of non-coercive human undertakings, a set of values that leads to an emphasis on some of these interests and to a neglect of others cannot lead to a proper ethic. General liberty cannot spring from such an imbalance. The desire must be to open all non-coercive corridors, protect them all, and adjust them to each other in the way most conducive to giving each some effective existence where they conflict.
Speech is a sacred liberty. Surely no
libertarian would contest this. But so are the other liberties. As I have
implied in the discussion of the Smith Act, the right to exist in a free
civilization is so important that some adjustment may be necessary in the
breadth of permissible speech in order to protect this right. All liberty is
sacred, and the preservation of it all depends upon the intelligent
accommodation of various human activities to one another.