Upstream, Downstream: Liberalism, Direct Harm, and Hate Speech

Russell Blackford

Most of us who favor secular government go much further and advocate a significant degree of social pluralism and political liberalism. Though we may differ on many specific policy issues, among them issues of economic management, we tend to have much in common when it comes to political theory and practical political judgments. In particular, we insist that the justifications of laws and government policies be based on the ordinary welfare of citizens, other human beings, and other sentient creatures. In turn, “ordinary” welfare excludes otherworldly or esoteric goods such as spiritual enlightenment, heavenly salvation, or release from a cycle of death and rebirth.

These otherworldly or esoteric goods are probably illusory, but even if they were real, it is not the role of government to help us attain them. Secular government means, above all, government policy focused on goods and harms related to the things of this world. Once electorates, courts, legislatures, and the executive arms of government accept this approach to their deliberations, the realm of politics is transformed. At that point, individual voters, legislators, and other political participants have far less reason and opportunity to impose their favorite comprehensive worldviews through the power of the state.

Thus, a secular society—one that favors strictly secular government—tends to become a liberal society, in the classical sense of “liberalism.” More simply put, a secular society tends in the direction of individual liberty. The government and its various branches and agencies are viewed as having only a limited role in controlling citizens’ lives, and a wide range of “experiments in living” (John Stuart Mill’s phrase) are regarded as tolerable or even welcome. The secular state will construct a framework of laws that help people with very diverse values or life plans to live side by side. Generally speaking, however, it will not try to impose a preferred comprehensive ideology or system of values.

In a secular and liberal society, some values will doubtless be preferred to others; for example, mutual toleration will be prized over ideological purity. But the values officially pursued by the state and its agencies will be reduced to a relatively small core, with individuals living in accordance with diverse, often mutually inconsistent, value systems.

I’m painfully conscious that many so-called liberal democracies, including the United States and my own country, Australia, are a long way from achieving such an ideal. All too often, voters and governments continue to impose comprehensive ideologies and value systems, including clearly religious ones. Indeed, there is much to be done before even the most basic ideas of secular government obtain universal acceptance in our liberal democracies. Organizations such as the Center for Inquiry have a practically inexhaustible work agenda just in resisting the encroachments of religious doctrines and values into the domain of law and political power.

But the problems don’t end there. Even if we all fully embraced the ideal of secular government, and even if this nudged us all in the direction of liberty and social pluralism, there would remain much scope for political disagreements. In particular, some of us would end up more focused than others on individual liberty, with all that it entails.

I’ve become especially conscious of this from experience with disputes about hate speech. By this I mean, very roughly, speech that expresses and encourages hatred of others on the basis of their group membership. The classical liberal position, going back to Mill and earlier, strongly favors freedom of speech, but many secular and supposedly liberal authors argue for broad definitions of hate speech and for extensive criminal prohibitions or other legal deterrents (such as the availability of civil remedies for offended feelings). To be fair to these authors, they typically rely on secular arguments relating to offense, social disharmony, the likelihood of ordinary harms eventuating, and so on. It does not appear that a commitment to secularism can, all by itself, solve the problem of how far to restrict hate speech or even how broadly we should define it for legal purposes.

Mill developed powerful arguments for individual liberty and, more specifically, freedom of speech. He encouraged suspicion toward both the power of the state and the more subtle tyranny of public opinion and feeling. The latter kind of tyranny merits a separate discussion, but Mill was clear that governments should not prohibit conduct—including speech and expression—unless it directly causes significant, wrongful, harm to others. This is the essence of his famous harm principle.

A reading of Mill’s On Liberty (1859) makes clear that its author wishes to ban only those actions and communications that cause rather direct harm. Once the state bans actions that are not directly harmful but might have somewhat remote harmful consequences, there is too much scope for micromanagement of our lives. Mill fears that the harm principle could be overextended into a “monstrous principle” under which anyone can demand that nobody act in any way falling short of one’s own standards of perfection.

In discussing freedom of speech, Mill famously uses the example of an angry mob gathered in front of a corn dealer’s house. According to Mill, it is permissible to condemn words that might incite the mob to immediate violence, such as a demagogue’s claim that corn dealers are starvers of the poor. However, Mill thinks that we should be free to express such sentiments in newspapers, where there is little risk of readers being provoked to immediate violence.

Of course, there might be an indirect chain of causation from a vitriolic article in a newspaper to an act of violence against, say, a corn dealer. Perhaps Albert, a zealous journalist, writes the article. Then Belinda reads it and forms a hostile attitude toward corn dealers that she then expresses to Caroline. Caroline, in turn, chats with David and perhaps directs him to Albert’s article, and David later encourages Edgar to demonstrate outside a corn dealers’ convention. This inspires Frank to incite the hotheaded Glenda to commit an act of outright violence. As a result, Helen, a prominent corn dealer, now lies in the hospital, her life hanging in the balance from the effect of a gunshot wound.

At what point should the law have interfered with this process? Mill would argue that any legal action should be well downstream from Albert’s original article and much closer to Glenda’s final act of violence. Other theorists might advocate laws that operate further upstream, perhaps even banning—or at least heavily censoring—the original article.

Perhaps we could prevent more acts of violence, dishonesty, and so on if we enacted “upstream” laws. However, the further upstream we go—beyond, say, a prohibition on violent acts and any immediate incitement to them—the greater the impact on the liberty of citizens. Upstream prohibitions on speech are more likely to chill speech of genuine public interest, and there are many less coercive ways to deal with the indirect dangers posed by speech that is remote from the feared harm. After all, we can still have “downstream” laws to ban violence and immediate incitement to it, and governments can influence the overall ethos of the society through relatively noncoercive means such as educational campaigns.

In a vast range of situations, the obvious response to pernicious kinds of speech is better, calmer, wiser speech. At the same time, we can take many steps to promote an environment of nonviolence, basic honesty and respect, and mutual toleration. Some very good reasons should be g
iven before we conclude that this approach is futile.

Still, the controversy over hate speech is one area of debate where many participants on both (or all) sides might favor secular government and at least claim to value individual liberty and freedom of speech. Rigorous downstreamers, who might wish to prohibit only very immediate incitements to unlawfulness, perhaps make different judgments from the upstreamers about the likely consequences of hate speech and the likely effectiveness of noncoercive responses. Downstreamers and upstreamers may place different weight on the value of individual liberty, as opposed to that of reducing risks of harms.

I am a natural-born downstreamer—I’m inclined by intuition and temperament to prohibit speech (and other conduct) only if the risk of harm is quite urgent and immediate. My writings on hate-speech issues have advocated relatively little in the way of regulation, and I argue that the more speech we chill, the more compelling our reasons must be. There are good reasons to favor narrow legal drafting and avoid overbroad restrictions on speech.

We should, I think, look with suspicion on proposals for upstream laws. Given their impact on liberty and their other disadvantages, all such proposals merit careful, skeptical scrutiny. Nonetheless, there’s an important issue here. In any particular public debate about freedom of speech, the respective strengths of upstreamers’ and downstreamers’ positions might depend on the social situation at the time and on exactly what speech they are wrangling about. Many upstreamers place at least some value on individual liberty, and they may share with downstreamers all the same basic assumptions about the secular role of government.

There is no magical knockdown argument that rules out all possible upstream laws once and for all. While their proponents should bear a heavy burden of proof, ultimately the issues must be determined through reasoned arguments and the best available evidence.


Russell Blackford

Russell Blackford is a conjoint senior lecturer in philosophy at the University of Newcastle (Australia) and a regular columnist for Free Inquiry. His latest book, The Tyranny of Opinion: Conformity and the Future of Liberalism (2019), is published by Bloomsbury Academic.

Even if we all fully embraced the ideal of secular government, and even if this nudged us all in the direction of liberty and social pluralism, there would remain much scope for political disagreements.

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