Rights Through Obligations: The Case of Free Speech

Some rights are grounded in the need for agents to fulfill their perceived responsibilities, including their obligation to pursue knowledge. This obligation, along with the communal nature of inquiry, supports a right to free speech that acquires particular stringency in those communities where inquiry is most essential.

Some rights are grounded in the need and desirability for agents to fulfill their perceived responsibilities. Parents, for example, have obligations to provide care and education for their children. Accordingly, they have a right to carry out those obligations against others who would try to prevent them from doing so, or would, without parental consent, usurp the place of parents in fulfilling those responsibilities.

The justification for such rights in general is that recognizing and choosing to fulfill one’s perceived obligations is an important part of a well-lived life, a central aspect of being a self-constituting moral agent.

Here, I want to investigate the right to free speech by way of this obligation-based approach. The account I give is not exclusive of other justifications for freedom of speech, but I think it should play a central role in a complete account.

There is a general moral right to freedom of speech, which should be recognized politically, and which is grounded on certain obligations we all have. However, in some contexts, the obligations that ground the right are very stringent; and I’ll argue that the right is strengthened in those contexts. Some of those contexts are institutional, and accordingly the right is such that it must be preserved against or by or within the institution in an especially stringent way.

Knowledge as a Good

The obligation in question is to seek the truth. Truth, and knowledge of truth, is a basic human good, a constitutive aspect of human well-being. We are in general better off knowledgeable than ignorant, and knowledge is a good that we can pursue for its own sake, and not solely for instrumental benefit.

This does not mean that all knowledge is of equal importance for us or that we should indiscriminately pursue a mere accumulation of facts. Both knowledge and its goodness have depth: The more we know, the more the good of knowledge becomes revealed to us as a good, and the more our knowing opens up new areas of possible knowing. Knowledge that operates in this gateway fashion to further knowledge and to further insight into its desirability is in general more essential than knowledge of discrete and unconnected facts.

Knowledge is also, of course, instrumentally important in a wide variety of ways, and it is essential for the pursuit of every other good: life and health, work, play, aesthetic experience, religion, friendship, marriage, integrity. And it is essential for our deliberations about what options to pursue, and when and how to pursue them, from among this range of goods.

Knowledge-Based Obligations and Free Speech

Do we have obligations to pursue knowledge? We do. Where knowledge is necessary for carrying out otherwise obligatory projects or actions, we are obligated to pursue it. Where knowledge of some subject matter is such that we could not be considered flourishing without some grasp of the truth of that subject matter, there is an obligation to inquire into that subject. Such subjects include: the nature of the human person, the existence or non-existence of a divine being, the relationship between persons and non-human nature, and so on. And where pursuit of knowledge is the object of a vocational choice, and thus plays a structuring role in the conduct of one’s life as a whole, further obligations are incurred.

So, there are lots of knowledge-based obligations. Are speech, and freedom of speech, essential for the fulfillment of these obligations? The answer is pretty obviously yes.

To see this, it is helpful to recognize some of the ways in which knowledge is social. First, no inquiry into any domain of knowledge gets off the ground without initial instruction and apprenticeship in how to conduct inquiry, including instruction in what one should take as the essential goal of inquiry—truth—and what one should take as the centrally guiding questions for inquiry. So to become an inquirer requires that one be part of an existing community of inquiry.

Second, the conduct of inquiry itself is in various respects inevitably social. In this it differs from judgment, which is always private: One must make up one’s own mind. But one is a fool if one does not apprise oneself of relevant, available evidence or data; if one does not consider arguments, objections, responses, alternative points of view, and the like; or if one ignores the results of others’ inquiries into the same topics.

Third, and obviously related, the truths attained in inquiry must be shared, both to those in one’s immediate community of inquiry, and to those in rival communities of inquiry.

So every inquiry into anything of substance requires some at least minimal and often quite considerable and continuing community of inquiry, a community constituted by a number of agents’ mutual commitments to getting at the truth of this or that subject matter.

But as I’ve argued in my work on lying, the foundation of community, insofar as it exists in the domain of action, is communication. Communication of truth to another is at the same time a communication of self—a sharing of self—which is the primordial act of formation of community, an act that requires, of course, a response by the other or others who make up the community with the one who communicates.

It is worth noting here that Aquinas identifies truthfulness as the virtue that must structure what he calls the order of communication. And he identifies as well the need for trust on the part of the recipient for there to be genuine community.

At the heart of what we call a right to free speech is, then, neither speech, nor writing, nor any other use of signs as such, but communication. Speech, writing, signs—all are instrumental to our efforts at communication. And as communication establishes the condition for the existence of any form of community, it thereby also establishes the condition for the existence of inquiry. And of course it massively contributes in an instrumental way to any particular community of inquiry’s attempts to get at the truth of some matter. Communication is thus essential, in a multiplicity of ways, to the carrying out of our manifold truth-related obligations. And thus for a culture and its laws to protect robustly that possibility of communication is likewise right and just, essential for human flourishing.

Free Speech: Three Important Contexts

Consider three particular contexts where the space afforded communication must be expansive and robustly protected: the university and the domains of political and religious inquiry. My remarks here are brief, but I hope suggestive.

The University

The university is an institutional context that provides external goods, instruction and apprenticeship, and moral leadership and discipline for those whose vocation includes inquiry in some central way. To be sure, this is an idealization. But the upshot is that the university must be a rigorous defender of the rights of its members to communicate in ways they see fit what they take to be essential to their inquiries.

Moreover, that freedom must extend not only to the specific subjects of inquiry academics engage in, but to the broader set of circumstances that academics take to be relevant to their specific inquiries, such as the academic, political, social, and cultural contexts in which they inquire. Inquiry into some particular domain cannot adequately be carried out in isolation from questions about and concerns for truths in all these other domains.

So communication about, or critical of, the university, or its administration, about political or cultural or moral issues, and so on, must be robustly protected. And, I would argue, such protections need to be offered even when the mode of communication is offensive, intemperate, or not obviously propositional—e.g., when it occurs in the display of works of art, performance, or satire. These protections need to be especially stringent because, again, in the university the obligation to seek truth is especially stringent, and the institution exists expressly for the sake of the carrying out of that obligation.

All this leaves much more to be said, and in particular about the kinds of moral failure or speech that the university does need to police and discipline. Such failures are in the central case failures of truthfulness. And more should be said about the positive ethics of inquiry that members of university communities should adopt and live by. I’ve tried to say something along these lines elsewhere in a book on the ethics of inquiry.

But even here, while the university exists in part to promote and police the norms of truthfulness, there should be a gap between that which is normative and that which is policed and punished: a strong though defeasible presumption of innocence—of good will in inquiry—among academics seems at least prudentially warranted, lest accusations of moral failure be used as a cudgel to suppress unwanted speech and inquiry.

Political Communities

Political inquiry concerns the truths about what is necessary to sustain our life together as a people and as a polity; about what laws contribute to the common good; about the identity and conduct of our legislators, judges, and executives, and so on. Without such inquiry, and thus without the communication necessary for such inquiry, a healthy political culture is impossible.

Prominent among the failures to adequately protect communication in this domain are acts not only of suppressing communication, but also acts of coercing it. Again, adequate protections are needed to ensure that space is provided both to communicate and also to be free from attempts to coerce communication.

These protections should be cultural as well as legal. A culture in which those who attempt to express a dissenting view to the political majority are shouted down, scorned, or otherwise abused is not healthy. Likewise, a culture in which social pressure is brought to bear in order to enforce public expression of received opinions fails adequately to respect the good of truth that free speech serves.

Religion

Similarly, the domain of inquiry into religious truth should be rigorously protected. Inquiry into religious truth is essential to all persons for an upright and flourishing life. If there is no God, that makes a difference for how practical reason judges its options. And if there is a God, that too makes a difference—and indeed a pervasive, structuring difference—to the believer’s life.

Communication is needed for the sake of religious inquiry and also for the sake of religious observance, both for conducting one’s own search and for aiding in the search of others. As regards this last, communication about religious matters should be especially protected within families, between parents and children.

The communication that needs to be protected in this domain includes, of course, communication that is critical, whether of religion in general, or of some particular religion. And recall that while communication is communication of propositions believed true, the communication of such propositions can, presumably, be accomplished in a variety of ways, including the creation of works of art, performance, cartoons, and so on.

Nor, again, is offensiveness in the mode of communication in general a ground for suppressing such communication, though it might well be a very good reason to refrain on occasion from communicating. The primary way to meet communication that one believes to be misguided, whether in content, mode, or both, is by more communication, not less.

More Communication

This all leads to a final thought. Often the best way to meet the attempt to suppress communication is by more communication. I am put in mind of the description of the Polish Workers’ Defense Committee, which I first read quoted by Germain Grisez, and which could reasonably stand as a directive to many today:

Its simple but radical guiding principle was to start doing the things you think should be done, and to start being who you think society should become. Do you believe in freedom of speech? Then speak freely. Do you love the truth? Then tell it. Do you believe in an open society? Then act in the open. Do you believe in a decent and humane society? Then behave decently and humanely.

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