Liberalism & Limited Government Property serves as a limit on - - PowerPoint PPT Presentation

Liberalism & Limited Government

✤ Property serves as a limit on power by defining what government

cannot interfere with or invade.

✤ The concept of Social Liberty proposed by Mill does not invoke

property as the limit, but instead posits the Harm Principle as the limit: “There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism” (Mill, On Liberty, p. 5).* *All page numbers are from the Hackett Edition, 1978.

Mill’s, On Liberty

• 1. Social Utility & The Progressive Principle
• 2. Individuality is a socially useful characteristic.
• 3. Just as free speech and a marketplace of ideas leads to truth,

so does a wide scope of action (“experiments in living”) lead to diversity and discussion—more moral progression.

• 4. The Harm principle serves as a gauge for limiting the

power of majorities and lessening the tyranny of the majority.

Mill’s T yranny of the Majority

“The notion that the people have no need to limit their power

• ver themselves might seem axiomatic, when popular

government was a thing only dreamed about….In time, however, a democratic republic came to occupy a large portion

• f the earth’s surface….It was now perceived that such phrases

as ‘self-government’ and ‘the power of the people over themselves,’ do not express the true state of the case. The ‘people’ who exercise the power are not always the same people with those over whom it is exercised; and the ‘self- government’ spoken of is not the government of each by himself but of each by all the rest” (p.3).

Will of the People

• 1. “The will of the people, moreover, practically means the will of the most

numerous or the most active part of the people—the majority, or those who succeed in making themselves accepted as the majority; the people…may desire to oppress a part of their number, and precautions are as much needed against this as against any other abuse of power” (p.4).

• 2. “…when society is itself the tyrant…its means of tyrannizing are not restricted

to the acts…of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since…it leaves fewer means of escape…enslaving the soul itself” (p.4)

The First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” —This is Madison’s construction, which places freedom of speech squarely in the same category as freedom to believe (both freedoms of conscience). This is distinct from other beliefs of his time, which placed speech within rights of

• pposition and liable to be restricted (prior restraint).

The Harm Principle

“The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty

• f action of any of their number is self-protection. That 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. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise or even right.” “In the part which merely concerns himself, his independence is, or right, absolute. Over himself, over his own body and mind, the individual is sovereign” (p. 9).

Man as a Progressive Being

✤ Humans evolve morally. They are like trees. ✤ They require the widest scope of human liberty.

• a. liberty of conscience, thought, and feeling
• b. liberty of action without Harm
• i. other-regarding
• ii. tangible
• iii. direct

Freedom of Speech

• 1. Infallibility
• 2. Devil’s Advocate
• 3. Dead Dogma
• 4. Half-Truths
• 5. Experiements in Living

“The only freedom which deserves the name is that of pursuing our own good in our own way…” (p. 12).

“If all mankind minus one were of one opinion… mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.…But the peculiar evil of silencing the expression of an

• pinion is that it is robbing the human race…

those who dissent from the opinion, still more than those who hold it” (p.16).

Individuality

✤ Individuality has a social value and freedom is necessary to develop it. It is also what

makes us human (human dignity).

✤ “But it is the privilege and proper condition of a human being, arrived at the

maturity of his faculties, to use and interpret experience in his own way” (p. 55).

✤ “He who lets the world…choose his plan of life for him has no need of any other

faculty than the ape-like one of imitation. He who chooses his plan for himself employs all his faculties. He must use observation to see, reasoning and judgment to foresee, activity to gather materials for decision, discrimination to decide, and when he has decided, firmness and self-control to hold to his deliberate decision. And these qualities he requires and exercises exactly in proportion as the part of his conduct which he determines according to his own judgment and feelings is a large one. It is possible that he might be guided in some good path and kept out of harm’s way, without any of these things. But what will be his comparative worth as a human being?” (p. 56).

Human Beings can be Perfected

“Supposing it were possible get houses built, corn grown, battles fought, causes tried, and even churches erected and prayers said by machinery—by automatons in human form—it would be a considerable loss to exchange for these automatons even the men and women who at present inhabit the more civilized parts of the world, and who assuredly are but starved specimens of what nature can and will produce. Human nature is not a machine to be built after a model…but a tree, which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing” (p. 56-57).

Mill, Chapter 5, “Applications”

• 1. Poisons
• 2. Danger (bridge is out)
• 3. Drunkenness/Drug Use
• 4. Gambling
• 5. Prostitution
• 6. Suicide (and Bus modification)
• 7. Taxing Vices

Obligation and Decency

“How (it may be asked) can any part of the conduct of the member of society be a matter of indifference to the other members? No person is an entirely isolated being.…If he injures his property, he does harm to those who directly or indirectly derived support from it….If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depended on him…but disqualifies himself for rendering the services which he owes to his fellow creatures….perhaps becomes a burden….Finally, if by his vices or follies a person does not direct harm to others, he is nevertheless (it may be said) injurious by his example, and ought to be compelled to control himself for the sake of those whom the sight or knowledge of his conduct might corrupt or mislead”(p. 78).

The Clear & Present Danger Test

✤ Schenck (1919) laid out the clear and present danger test, which

states that speech may be limited if it poses a clear and present danger such that it will create “substantive evils,” measured by proximity and degree, which Congress has a right to prevent.

✤ In the case of Schenk, leaflets opposing the draft were distributed

directly to men of draft age and found to be disruptive of the war effort in a manner that Congress has a right to prevent (no actual harms needs to have occurred).

✤ This same test is adopted in Abrams. Yet, Justice Holmes dissents

in Abrams. Why?

Justice Holmes Dissents in Abrams

✤ He characterizes the leaflets thrown out a NYC window as

“silly” and immature.

✤ He argues that even if the conviction can turn the color of

“legal litmus paper” it should not carry a harsh sentence.

✤ He likens the speech of the defendants as similar to a patriot

who writes an editorial during wartime about how much ammunition or which kinds of planes the military ought to

• use. What if he were to have an influence and we lose the

war? Would the patriot be liable?

Abrams Dissent

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle,

• r that you do not care whole-heartedly for the result, or that you doubt either your power or

your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the

• nly ground upon which their wishes safely can be carried out. That at any rate is the theory of
• ur Constitution. It is an experiment, as all life is an experiment. Every year if not every day we

have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

The American Constitution

✤ The American constitutional state uses property as the limit (1st

Amend.) and the Harm Principle is one of many criteria used to develop the scope of property.

✤ The U.S. Supreme Court upholds “time, place, manner”

restrictions on speech, which do not impinge on “content” of speech.

✤ In distinguishing between speech and action, as Mill would

suggest we do, our laws differentiate between legislation meant to control “content” (speech) or effects of speech where speech is simply a vehicle for action.

Texas v. Johnson (1989)

✤ Flag burning is “expressive conduct” and cannot be

penalized by law because it is protected “speech.”

✤ Texas tried to limit “content of speech” by prescribing a

specific symbolic “meaning” to the flag that may not be undermined or desecrated. The Supreme Court struck down this law as violating the freedom of speech.

✤ Congress tried to re-write law: Flag Protection Act.

However, this law failed to garner votes in Senate.

Speech and Non-speech Elements

✤ When does speech become action? ✤ When can action be construed as “expressive conduct” such that

it is protected as a type of communication and hence, speech?

✤ A Millian approach to flag burning would agree with the Court’s

• reasoning. You can pass a content neutral law which forbids

setting anything on fire within certain city limits, which would effectively limit the ability of people to burn a flag, but it could not target the content or message of a person’s actions, only the potential danger of a person’s action.

R.A.V . v. City of St. Paul (1992)

"Whoever places on public or private property a symbol,

• bject, appellation, characterization or graffiti, including,

but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis

• f race, color, creed, religion or gender commits

disorderly conduct and shall be guilty of a misdemeanor."

Justice Scalia’s Opinion

✤ We “conclude that the ordinance is facially unconstitutional in that it prohibits

• therwise permitted speech solely on the basis of the subjects the speech addresses.”

✤ Scalia affirms the limits of protected speech like fighting words and speech “of such

limited social value” it should not be protected.

✤ He objects to the use of “racially motivated” speech as the limit because it seems to

suggest the government can tell you what to think. He objects to the targeting of “disfavored topics” like race, color, creed, religion, or gender.

✤ Scalia argues that “protected ideological content” is impermissible. ✤ “Let there be no mistake about our belief that burning a cross in someone's front

yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”

Dissent

“If Congress can prohibit false advertising directed at airline passengers without also prohibiting false advertising directed at bus passengers and if a city can prohibit political advertisements in its buses while allowing other advertisements, it is ironic to hold that a city cannot regulate fighting words based on "race, color, creed, religion or gender" while leaving unregulated fighting words based

• n "union membership or homosexuality." Ante, at 13. The Court

today turns First Amendment law on its head: Communication that was once entirely unprotected (and that still can be wholly proscribed) is now entitled to greater protection than commercial speech--and possibly greater protection than core political speech.”

In a pivotal passage, the Court writes "the Federal Government can criminalize only those physical threats that are directed against the President, see 18 U.S.C. § 871--since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to

• the. . .President." Ante, at 10.

As I understand this opaque passage, Congress may choose from the set of unprotected speech (all threats) to proscribe only a subset (threats against the President) because those threats are particularly likely to cause "fear of violence," "disruption," and actual “violence." Precisely this same reasoning, however, compels the conclusion that St. Paul's

• rdinance is constitutional. Just as Congress may determine that threats against the

President entail more severe consequences than other threats, so St. Paul's City Council may determine that threats based on the target's race, religion, or gender cause more severe harm to both the target and to society than other threats. This latter judgment-- that harms caused by racial, religious, and gender based invective are qualitatively different from that caused by other fighting words--seems to me eminently reasonable and realistic.