Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.


Sticks, Stones, and Speech


Jesse Covington

03-09-2015


By Jesse Covington

March 9, 2015

 

The old nursery rhyme “Sticks and stones can break my bones, but words can never hurt me” conveys both a basic truth and a well-worn falsehood. Physical coercion has a unique ability to cause sudden and often irreversible bodily injury; the impact of words is usually less devastating. Nevertheless, the idea that words cannot hurt remains patently untrue. Words can and do cause a variety of harms both tangible and intangible. Our laws account for both realities. Physical assault is subject to greater legal regulation than are speech and press; allowances for self-defense or protecting others are the exceptions rather than the rule.

In contrast, legal protections for speech are the rule, to which exceptions are made for fraud, libel, incitement, intentional infliction of emotional distress, and the like. Each such limit on the norm of expressive freedom aims to prevent a particular kind of harm that words can cause. But how do we decide what sorts of “harm” should justify limits on free speech? How does our theology matter for how we answer this question?

The January 7 attack on the offices of the provocative satirical French magazine Charlie Hebdo illustrates both of the above points about harm. Two gunmen opened fire on the publication’s staff members and later on police, killing twelve and injuring others. These actions, which took place in a matter of minutes, caused devastating physical harm. The gunmen were apparently motivated by the perceived harms suffered by Islam from Charlie Hebdo’s satirical depiction of the Prophet Mohammed. While their belief that these perceived harms can justify murder on any scale is deeply wrong, the idea that words can be harmful warrants serious attention, particularly in the context of determining the parameters within which free speech, press, and association may be exercised.

Following the attacks, public discourse about expressive freedoms has been divided. On the one hand, those rallying around the slogan “Je Suis Charlie” have shown their strong support for robust liberties of press and speech—however offensive—through solidarity with the magazine. On the other hand, observers like Martin London ask “Why Tolerate Terrorist Publications?”, noting the grave harms—like the Boston Marathon bombing—that come from permitting the unregulated dissemination of detailed instructions for violence.[1] Still others, like David Brooks, highlight the hypocrisy of crying “Je suis Charlie” from within a culture in which campuses disinvite controversial speakers and in which workers are fired for insensitive tweets.[2] Brooks calls instead for increased civility encouraged by means other than law.

Of course, each of these three points gets something quite right. A basic commitment to broad liberties of speech and press is vital to a healthy society. However, carrying this to the point of protecting the incitement of lawless action can undermine that political society, though where to draw the line remains unclear. There is much here that government cannot do, but which must be done by other parts of a social order. What principles can guide how these pieces should fit together?

Communities and “Harm”

A first step lies in considering the nature of “harm.” In his famous essay “On Liberty,” John Stuart Mill recognizes each of the above points, vigorously defending broad liberties of speech, acknowledging harm-based limits, and noting (with some trepidation) the strength of non-political sources of social restraint. Where Mill draws the line sounds reasonable enough: “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”[3] However, what Mill’s freedom-emphasizing description glosses over is the substantive view of human flourishing necessary for assessing “harm.” Any such vision of human well-being reflects a theologically informed anthropology. In other words, our understanding of harm is always located in broader conceptions of human wholeness in the world and in relation to God.

Some speech causes harms that are physical and obvious even among those who disagree about other things—like injury or death resulting from a false cry of “fire” in a crowded theater, as Oliver Wendell Holmes once put it, or like a radical website publishing detailed information on bomb-making and detonation. But not all harms are as obvious. Take, for instance, the efforts of the city of Indianapolis, Indiana during the 1980s to protect women against the social harms perpetuated by the pornography industry. Indianapolis passed an ordinance prohibiting a particular set of materials involving “the graphic sexually explicit subordination of women.” It was premised on the assumption that such publications shaped society in ways that systematically disadvantaged women.

Aside from the merits and liabilities of the statute itself (and the details do matter), it clearly pursued a particular vision of human flourishing that included social equality and saw its abrogation as a real harm. Put differently, it limited a negative liberty (individuals’ freedom to consume pornography without interference) for the sake of a positive liberty (the ability to attain a corporate good of equal standing in society). This was a decision about balancing: assigning relative value to multiple goods. When the US Court of Appeals for the 7th Circuit struck down the law as an unconstitutional limit on the freedoms of speech and press in American Booksellers Assn. v. Hudnut, it did so largely on the basis of a different balancing.[4] In keeping with a long tradition in American free speech jurisprudence, it prioritized the negative liberty over the positive one.

Despite the court’s preference for the negative liberty of individuals, one would be hard-pressed to cast the Indianapolis City Council as somehow unreasonable for offering a different evaluation, namely, that this type of social equality is a “good” warranting legal protection. One might argue that this might have better pursued in different ways, but the conceptions of flourishing and harm that shaped the statute are certainly reasonable (indeed, the high courts of Canada and Germany have at times had more in common with Indianapolis’s vision of flourishing than with that of the US Federal courts). A central question, then, is how to balance competing goods—like freedom and equality—when forming policy.

All communities and their laws are organized around a vision of the good life, but reaching agreement on this vision is often difficult. Who is to say just where to strike the balance between prioritizing individual free speech and other goods with a more communal bent?  What about the myriad areas of public policy about which reasonable people of goodwill can and do continue to disagree? As initially conceived under the US Constitution, federalism helped structure how to approach these dilemmas. The limited powers granted to the national government removed regulations of speech, press, and assembly (among all powers not enumerated in Article I, Section 8) from its laws’ purview. Instead, the process of finding a good balance among the constellation of competing goods was a challenge (and a right) largely reserved to state and local governments and other societal institutions. Under this structure, the potential for tyranny was reduced by removing most policy questions from the most powerful political entity—the national government. At the same time, the positive liberty of subnational communities to self-define was protected and empowered through the plenary powers reserved to the states.

St. Augustine on the Commonwealth

At least one ancient voice in the Christian tradition indicates that this sort of political decentralization is not merely an interesting historical artifact. Rather, it points out important theological reasons why certain types of political decentralization remain an enduring principle of political organization. St. Augustine of Hippo famously divides humanity into two “cities”—the City of God and the Earthly City—defined in terms of love-of-God and love-of-self, respectively. Augustine is clear that these deeply divided groups both inhabit the world inside of time—the saeculum. In an early articulation of pluralism, Augustine acknowledges that politics must account for the presence of both groups in the community. If Augustine were to read John Rawls’s Political Liberalism, he would not be entirely surprised at Rawls’s account of “reasonable pluralism,” (though he would, of course, challenge many of Rawls’s claims) -- fundamental disagreement between reasonable people is inescapable.[5]

In Book XIX of his magnum opus City of God, St. Augustine calls Christians to actively seek the peace that politics can provide as a real good, though a limited one.[6] He recognizes that this peace is but a pale shadow of the perfect peace of cosmic right-ordering in eternal fellowship with God. As a shadow, and reflecting its two-city composition, human government must account for and limit human wickedness. How then are we to think about human political communities, particularly when forging a conception of human flourishing and limiting harms understood in light of that flourishing?

Augustine’s account of the “commonwealth” sheds light on this. He examines one early definition of a “commonwealth” from Cicero that focuses on a shared “sense of right” among a people. But Augustine rejects this view for being too perfectionist, since “right” entails a robust theological justice under which all people love God and neighbor perfectly.[7] This is only an apt description of eternal life with God, but never the two-city politics of the saeculum. In other words, the combination of the two cities in time makes it impossible to achieve perfect agreement about a theological vision for right-ordering. Instead, Augustine offers an alternative conception of the commonwealth as a community organized around its shared loves. Communities, he maintained, will vary by virtue of the objects of these loves; the better the things loved, the better the community.[8] Thus communities—including the earthly peace pursued by their laws—will be ordered according to their shared loves. 

On Decentralization and Differentiation                                     

Recognizing that communities’ shared loves will vary and that politics will reflect this variance, we should not be surprised that communities place different priority on goods like freedom and equality, the individual and the community, negative liberties and positive liberties. Indeed, expecting such difference can illumine our thinking about the conceptions of human flourishing and harm that guide the boundaries placed on communicative and associational freedoms. I suggest that Augustine’s theologically informed social vision points to the wisdom of the Christian principles of subsidiarity and sphere sovereignty, particularly regarding political decentralization and societal differentiation.

First, Augustine’s social vision suggests the import of political decentralization in at least two respects. On the one hand, his theology implies that the diversity of larger political communities will mean that they are likely to love fewer goods in common. Given this, only “thinner” conceptions of justice and human flourishing are likely to be shared in ways that facilitate policy formation. Smaller communities may share more substantive objects of their loves, allowing “thicker” conceptions of the human person to guide policy (with, he acknowledges, results of varying quality). On the other hand, while larger political units may indeed do much good by protecting against grave harms guided by natural moral norms, Augustine is deeply aware of the dangers of the libido dominandi—the lust to dominate—an insight that recommends greater limits on centralized power, where restraints are fewer and dangers of abuse are greater. More localized governments can and should—in varying degrees and within certain limits—craft their own balances between freedoms to speak and protections from harm, and will do so in ways that reflect the objects of their shared loves.

Second, in common with Abraham Kuyper’s later description of differentiated societal spheres, an Augustinian theology serves as a reminder that the political hierarchy is by no means the only player involved in addressing these questions. Individuals, families, and churches will have the thickest, most robust accounts of human flourishing, including freedom and the spoken harms that should be prevented. For instance, in a family’s communicative standards, Ephesians 4:29’s exhortation “Do not let any unwholesome talk come out of your mouths, but only what is helpful for building others up according to their needs, that it may benefit those who listen” (NIV) might quite rightly supersede political principles of free speech. Likewise, colleges, businesses, student clubs, and other voluntary associations will shape their communities through mission statements and behavioral guidelines that would be impossible in the broader and more pluralistic political community. Provided that the applications of these thicker visions of flourishing and harm do not cut against the thinner (but vital) notions of flourishing that government protects, they warrant respect and protection from government as part of its mission to do justice.

So, should French law prohibit the harm of mass murder? Absolutely. Should it refrain from intruding on a free press, even a highly provocative publication like Charlie Hebdo? Undoubtedly. But is there room for smaller political communities to legitimately craft guidelines encouraging greater civility or equality that reflects the shared priorities of a thicker anthropology, as Indianapolis once attempted to do? Wise voices suggest so. Might also Christian individuals and associations who disapprove of rude and demeaning expression make this clear in their corporate practices and public statements? Indeed they might.

 

Questions for reflection:

1.     What are the shared “objects of love” that best describe your different communities, both political (town, state, nation) and non-political           (family, business, church, clubs)? What implications do these have for human flourishing and harm, especially as regards speech?

2.     How conducive is the American political and legal context to the sort of decentralization and differentiation described here? Where are the         key points of friction? Of opportunity?

3.     In light of the reality that a community’s ‘loves’ are not static, consider what ideas, habits, entertainments, and cultural artifacts are most         formative in shaping your own communities’ loves.  What prospects exist for these loves to be improved?

 

- Jesse Covington is Associate Professor of Political Science at Westmont College and for 2014-15 is William E. Simon Visiting Fellow in Religion and Public Life at the James Madison Program of Princeton University. He is an alum of CPJ’s Civitas program.

 



[1] Martin London, "Why Tolerate Terrorist Publications?," New York Times, January 23, 2015 2015.

[2] David Brooks, "I Am Not Charlie Hebdo," Ibid., January 8, 2015.

[3] John Stuart Mill, On Liberty and the Subjection of Women (New York, NY: Penguin Classics, 2007)., 16.

[4] American Booksellers Assn, Inc. V. Hudnut, 771 F.2d 323 (1985).

[5] John Rawls, Political Liberalism (Expanded Edition) (New York, NY: Columbia University Press, 2005).

[6] Augustine, City of God (New York, NY: Penguin Classics, 2003)., XIX:17 (877-8).

[7] Ibid., XIX:21 (881-2).

[8] Ibid., XIX:24 (890-1)

 



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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”