Topics Law

Question In light of a question about Irving and Holocaust denial [http://www.amherst.edu/askphilosophers/question/971], I wonder why free speech should be seen as an absolute principle which has no limits. It seems to me that practical wisdom dictates that in some cases for the good of society (for example, to avoid hate crimes) free speech must have certain limits. I have no idea how to determine those limits and I suspect that there isn't any formula, but perhaps you people can clarify the issue. Thanks.

Accepted:
March 4, 2006

Comments

Well, there is such a formula, actually, the so-called clear and present danger test. This goes back to an opinion Supreme Court Justice Oliver Wendell Holmes composed in regard to the case Schenk v. United States (1919). Schenk was general secretary of the American Socialist Party and had been convicted under the Espionage Act with inciting young men not to enlist for World War I. The Court rejected his appeal, judging, in the words of Holmes, that Schenk's "words create a clear and present danger that they will bring about substantive evils Congress has a right to prevent." Holmes likened Schenk's utterance to that of someone fortuitously shouting "fire" in a crowded theater.

Subsequent jurisprudence narrowed the test in the direction of requiring that the danger, to count as "present," must be imminent. This undermined Holmes's analogy: The cry of "fire" creates an immediate danger, while Schenk's 15,000 leaflets could not have undermined the US war effort except over a considerable time span. During this time span, American citizens would have considered the merits of Schenk's appeal and made up their minds about it, thereby engaging in precisely the kind of political deliberation the First Amendment is supposed to protect. Holmes himself was involved in tightening the test through his dissents in Abrams v. United States (1919) and in Gitlow v. New York (1925), but, though supported by Justice Brandeis, he did not convince the Court's majority. The tightening became effective when the Supreme Court overturned the convictions in Brandenburg v. Ohio (1969) and in Hess v. Indiana (1973). Whether it will survive the present "War on Terror" remains to be seen.

The philosopher John Rawls discusses and defends the test in its tightened form sympathetically in his essay "The Basic Liberties and Their Priority" (reprinted in his Political Liberalism). An important contemporary critic of the tightened test as too tight is Catherine McKinnon, who has advocated outlawing pornographic materials that create a danger of hate crimes against women (the kind of case you pose). (Here Rawls's contractualist reasoning and first priority rule may actually be more supportive of McKinnon's more permissive test than of Rawls's own defense of the tighter version. See answer to Question 160.) McKinnon's arguments, in turn, have been criticized by Ronald Dworkin.

In following and assessing this ongoing debate about the clear and present danger test, it is important to bear in mind the question is was meant to resolve -- the question, namely, what expressions it is morally permissible for the state to outlaw and to punish. This question is distinct from the question which expressions should be viewed as morally wrong. Even if expressions such as Irving's denial of the Holocaust or the Danish cartoons or descriptions of violence against women, creating no clear and imminent danger, should be legal and not punishable as crimes, this does not prejudge the correct moral judgment about them (see answer to Question 959).