Dimensions of Free Speech: An Exploration of a New Theoretical Framework (Philosophy and Politics - Critical Explorations, 19) 3030883183, 9783030883188

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Philosophy and Politics - Critical Explorations

Devrim Kabasakal Badamchi

Dimensions of Free Speech An Exploration of a New Theoretical Framework

Philosophy and Politics - Critical Explorations Volume 19

Series Editors David M. Rasmussen, Boston College, Chestnut Hill, MA, USA Alessandro Ferrara, Dipartimento di Storia, University of Rome ‘Tor Vergata’, Rome, Italy Editorial Board Members Abdullah An-Na’im, Charles Howard Candler Professor of Law, Emory University, Atlanta, USA Bruce Ackerman, Sterling Professor of Law, Yale University, New Haven, CT, USA Robert Audi, O’Brien Professor of Philosophy at the University of Notre Dame, Notre Dame, IN, USA Seyla Benhabib, Eugene Meyer Professor for Political Science and Philosophy, Yale University, New Haven, CT, USA Samuel Freeman, Avalon Professor in the Humanities, University of Pennsylvania, Philadelphia, PA, USA Jürgen Habermas, Professor Emeritus, Goethe-University, Frankfurt am Main, Frankfurt, Bayern, Germany Axel Honneth, Goethe-University, Frankfurt am Main, Germany and Columbia University, New York, USA, Frankfurt am Main, New York, Germany Erin Kelly, Professor of Philosophy, Tufts University, Medford, MA, USA Charles Larmore, W. Duncan MacMillan Family Professor in the Humanities, Brown University, Providence, RI, USA Frank Michelman, Professor Emeritus, Harvard University, Cambridge, MA, USA Tong Shijun, Professor of Philosophy, East China Normal University, Shanghai, China Charles Taylor, Professor Emeritus, McGill University, Montreal, Montreal, QC, Canada Michael Walzer, Professor Emeritus, Institute of Advanced Study, Princeton, Princeton, NJ, USA

The purpose of Philosophy and Politics - Critical Explorations is to publish high quality volumes that reflect original research pursued at the juncture of philosophy and politics. Over the past 20 years new important areas of inquiry at the crossroads of philosophy and politics have undergone impressive developments or have emerged anew. Among these, new approaches to human rights, transitional justice, religion and politics and especially the challenges of a post-secular society, global justice, public reason, global constitutionalism, multiple democracies, political liberalism and deliberative democracy can be included. Philosophy and Politics Critical Explorations addresses each and any of these interrelated yet distinct fields as valuable manuscripts and proposal become available, with the aim of both being the forum where single breakthrough studies in one specific subject can be published and at the same time the areas of overlap and the intersecting themes across the various areas can be composed in the coherent image of a highly dynamic disciplinary continent. Some of the studies published are bold theoretical explorations of one specific theme, and thus primarily addressed to specialists, whereas others are suitable for a broader readership and possibly for wide adoption in graduate courses. The series includes monographs focusing on a specific topic, as well as collections of articles covering a theme or collections of articles by one author. Contributions to this series come from scholars on every continent and from a variety of scholarly orientations.

More information about this series at https://link.springer.com/bookseries/13508

Devrim Kabasakal Badamchi

Dimensions of Free Speech An Exploration of a New Theoretical Framework

Devrim Kabasakal Badamchi Institute of Political Science Leiden University Leiden, The Netherlands

ISSN 2352-8370 ISSN 2352-8389 (electronic) Philosophy and Politics - Critical Explorations ISBN 978-3-030-88318-8 ISBN 978-3-030-88319-5 (eBook) https://doi.org/10.1007/978-3-030-88319-5 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To Lilya and Meysam

Acknowledgements

This book was written in three different countries over the course of nearly 5 years. I published the main idea as an article titled “Justifications of Freedom of Expression: Towards a Double-grounded Non-Consequentialist Approach” in the journal Philosophy and Social Criticism when I was in Turkey back in 2015, before the conditions in my country forced me to leave in order to finish the work. I had to start a new academic life abroad as an immigrant, and during these years, my path crossed with many kind and bright people who inspired and, at the same time, challenged my thoughts in a constructive way. Therefore, first of all, I would like to express my gratitude to all my colleagues, students, and friends in Turkey, England, and the Netherlands who were generous enough to devote their time to discuss the arguments in the book and provide feedback on my work. I could not imagine completing the work without the support I have received from them. During the years I taught at School of Oriental and African Studies (SOAS) in London (2018 and 2019), I had the chance to discuss some parts of the book with the students who enrolled in my political theory course. I benefited a lot from their criticisms and questions on various aspects of free speech. I owe a big thank you to all of them. I presented some parts of the chapter on hate speech at the workshop, “Hate Speech as Political Communication and Practices” held in SOAS on May 31, 2018. I would like to thank to the participants of this workshop for their valuable contributions. Moreover, special thanks go to Rochana Bajpai and Manjeet Ramgotra with whom I co-taught for three semesters. I have learned a lot from them as a teacher and had the chance to deepen my knowledge and skills thanks to their help and kindness. I also owe a big thanks to Estella Carpi, my Global Young Academy mentor from University College London, who has been there for me with her generous support both as a scholar and a friend. In October 2020, I moved to the Netherlands to teach at Leiden University. The colleagues at Leiden have been so welcoming and supportive since my arrival, despite the pandemic and lockdown, which forced everyone to work from home for a considerable period. Particularly, I would like to express my gratitude to Jan Oster and Josette Daemen who read different chapters of the book and provided vii

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valuable comments and constructive suggestions. Furthermore, I owe a great thanks to all the participants of the lunch seminars of the Institute of Political Science of Leiden University for their engaging and inspiring questions, which helped me improve the chapter on academic freedom immensely. I also feel grateful for the support of the Institute Board of the department of Political Science—Petr Kopecky, Nikoleta Yordanova, and Nicolas Blarel—for their professional support when I needed it, by providing me the conditions to continue my work and stay in the Netherlands. I would not be able to publish this book without their moral sympathy and support. In May 2021, I was invited to teach at the Venice Summer School and Seminars “Free Speech, Its Primacy and Challenges” organized by ResetDoc. I had the opportunity to share my work with the brilliant students and scholars working on the topic of free speech from all over the world. Their comments and feedback have enabled me to appreciate what I have done so far, but also look at my work with different lenses and from different angles. Therefore, a very special thank you goes out to the students and participants of the Venice Seminars. Soon after the Venice Seminars in May, I received the reports of the two anonymous reviewers on my manuscript. I am truly indebted to their encouraging comments and constructive suggestions which allowed me to come up with a better manuscript. Furthermore, around the same period, I was invited to give a talk on my work on free speech as part of the Seminars on Political Science and Public Administration at Middle East Technical University. I am grateful for the encouraging comments and questions of Prof. Asli Cirakman, Prof. Cem Deveci, and Prof. Ayse Ayata. It was truly motivating and enriching to meet my former mentors and have the chance to exchange ideas with them. I also owe special thanks to the institutions who supported me financially and academically during the completion of this book. A substantial part of the manuscript was written thanks to the financial support I received from the Institute of International Education (IIE) Scholar Rescue Fund (SRF) when I was at SOAS in London. I had the chance to receive the SRF grant for two consecutive years from January 2018 to December 2019. I completed the remaining part of the book with the financial support provided by Leiden University Fund (LUF) between July 2020and June 2021 during the first year of my stay at Leiden University. I am grateful to Prof. Alessandro Ferrara and Prof. David Rasmussen, who kindly accepted to offer a place for my manuscript within their prestigious book series titled Philosophy and Politics: Critical Exploration. The early manuscript of the book benefited immensely by the copy editing of Megan Foster who spent considerable time to make my English look natural. Moreover, my ideas and arguments would not be so accessible without the generous comments and suggestions of the two anonymous reviewers. Therefore, a great thanks go to Megan and the anonymous reviewers as well. The writing of this book overlapped with a lot of changes which were quite challenging for my family. First, we immigrated to England in 2018, and after almost 3 years, we had to move to the Netherlands. My partner Meysam Badamchi has always been there for me to discuss the arguments of my book despite whatever was

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going on in our lives. Without his generous help and continuous belief in me, I would be lost. My daughter Lilya has been a great joy and source of inspiration. She deserves a great deal of thanks due to her patience and resilience during all the uncertainties and hardships that we had to go though in the last 5 years. Her continuous question “Mommy, when is your book going to be finished?” was quite self-explanatory regarding my inevitable absences in her life, but I think she managed this whole process quite well for a 6-year-old kid. My family in Turkey and my extended family in Iran and Canada deserve a great acknowledgment. My brother Bekir’s wise advices regarding life and academic matters, my parents’ and sister’s emotional presence, and the joy and life energy I received from Meysam’s family helped me a lot to survive in the face of the challenging moments, especially when I was overwhelmed by both the bureaucratic and social hardships of being a forced migrant in different countries. I know all of them are proud and happy because I finally managed to complete my book. I am proud to have all of them in my life too. I think I am one of the luckiest people in the world to have good friends by my side. I would like to mention Yelda Sahin Akilli, Defne Erzene Burgin, Sekine Ozten Mert, and Selin Bengi Gumrukcu to express how privileged I feel to have them as friends in my life. Without their empathy and support, I could hardly manage to concentrate on anything, let alone my book. We have learned many things together the over years and grown together into who we are now. I am privileged for their presence in my life. Devrim Kabasakal Badamchi Leiden, The Netherlands November 2021

Contents

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 9

2

Two Rival Positions on Free Speech . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Free Speech Skepticism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 Schmittian Skepticism About Free Speech . . . . . . . . . . . . 2.1.2 Stanley Fish’s Skepticism on Free Speech . . . . . . . . . . . . 2.2 Free Speech Absolutism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2.1 Justice Hugo L. Black’s Absolutism . . . . . . . . . . . . . . . . 2.2.2 Alexander Meiklejohn’s Absolutism . . . . . . . . . . . . . . . . 2.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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11 12 13 16 19 20 23 25 27

3

Setting the Conceptual Ground . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Conceptual Circumstances of Free Speech . . . . . . . . . . . . . . . . . 3.2 Free Speech as a Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Dependent and Independent Principles . . . . . . . . . . . . . . 3.2.2 Schauer’s Conception of the Free Speech Principle . . . . . 3.3 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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29 30 31 31 34 37 38

4

How to Justify Free Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 Discovery of Truth as a Justification for Free Speech . . . . . . . . . 4.2 Personal Development as a Justification for Free Speech . . . . . . . 4.3 Equal Autonomy as a Justification for Free Speech . . . . . . . . . . . 4.4 Democratic Participation as a Justification for Free Speech . . . . . 4.5 The Double-Grounded Principled Approach to Free Speech . . . . . 4.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . .

39 40 43 45 49 56 61 62

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Contents

Academic Freedom and Free Speech . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Conceptions of Academic Freedom . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 Academic Freedom as Institutional Autonomy . . . . . . . . . . 5.1.2 Academic Freedom as Intellectual and Professional Autonomy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Justifications of Academic Freedom . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 The University as a Realm of Discovery of Truth and Independent Knowledge Production . . . . . . . . . . . . . . . . . 5.2.2 The University as a Realm of Democratic Free Debate . . . . 5.3 How Can Academic Freedom Survive? . . . . . . . . . . . . . . . . . . . . 5.4 The Neoliberal Expectations and Transformation of Academia in the United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 The Authoritarian Challenge and Academic Freedom in Turkey . . . . 5.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

68 69 69 71 74 78 81 88 90

. . . .

93 94 94 97

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102 109 115 116

7

Hate Speech and Limits of Free Speech . . . . . . . . . . . . . . . . . . . . . . . 7.1 The Contextual Relevance of Hate Speech Debates . . . . . . . . . . . . 7.2 Characteristics of Hate Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 An Overview of the Theoretical Views on Hate Speech . . . . . . . . . 7.4 Can Hate Speech Be Protected Speech? . . . . . . . . . . . . . . . . . . . . 7.5 Political Correctness and Hate Speech . . . . . . . . . . . . . . . . . . . . . 7.6 Offensive Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7 Hate Speech Legislation and Theories of Free Speech . . . . . . . . . . 7.7.1 Hate Speech Legislation in Europe and North America . . . . 7.7.2 Do Hate Speech Laws Violate Democratic Legitimacy? . . . . 7.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

119 120 123 125 130 134 138 142 142 149 152 154

8

Epilogue: Reflecting on Free Speech in the Time of Covid-19 . . . . . 8.1 In What Ways Can the Latest Pandemic Inform Our Conception of Free Speech? . . . . . . . . . . . . . . . . . . . . . . . . 8.2 Hate Speech in the Time of the Pandemic and the Limits of Free Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6

Free Speech, Media Freedom and Regulation of Online Speech . . . 6.1 Media, New Media and Free Speech . . . . . . . . . . . . . . . . . . . . . 6.1.1 The Concept of Media in the Contemporary World . . . . . 6.1.2 Justifying Media Freedom and Free Speech . . . . . . . . . . . 6.2 Media Freedom and Regulation of Online Speech in the United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Media Freedom and Regulation of Online Speech in Turkey . . . . 6.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

65 66 66

. 157 . 159 . 162 . 163

About the Author

Devrim Kabasakal Badamchi earned her bachelor’s degree from Ankara University in 2000, her master’s degree from Middle East Technical University in 2002, and her PhD from Luiss Guido Carli University in Italy in 2009. She held teaching and research positions in Turkey and England. Since July 2020, she is a lecturer in the Department of Political Science, Leiden University. Her research falls within the field of contemporary political theory with a focus on liberalism. She specializes on the topics such as free speech, hate speech, toleration, multiculturalism, and pluralism. Dr. Badamchi has published articles in various peer-reviewed journals including Turkish Studies and Philosophy and Social Criticism. E-mail address of the corresponding author: [email protected]

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Chapter 1

Introduction

Abstract This chapter outlines the reasons for the relevance of free speech debates in the contemporary world and lays out the intellectual and personal motivation behind the endeavor of writing this book. I claim that free speech has a central place within the context of the demands for justice and democracy in the contemporary world. Therefore, I state that it is important to investigate the possible foundations that justify free speech on strong principled grounds. Furthermore, I introduce the main argument of the book that a combined justification, one which takes into account various aspects of the democracy and equal autonomy arguments, is able to provide a stronger foundation to free speech than any of the separate individual justifications on their own. Lastly, I lay out the structure of the chapters and introduce how I will cover the dimensions of free speech and justify my argument. Keywords Free speech · Free speech principle · Justifications of free speech · Academic freedom · Media freedom · Hate speech

Ronald Dworkin says that each of us, as persons, has a personal ethical responsibility to live our lives in accordance with our own felt convictions (Dworkin 1996, 12). He also argues that scholars and others who teach and study in universities have an even more uncompromising responsibility: “It is an undiluted responsibility to the truth, and it is, in that way, the closest a professional responsibility can come to the fundamental ethical responsibility each of us has. . .” (Dworkin 1996, 12). I believe, this ethical motivation constitutes the reason for this book in the first place. I had to speak out in order to live my life in accordance with my own felt convictions; to speak and write what I think is true and important out in the world. The idea behind this book originated almost seven years ago, in the spring of 2014. Back then, I was a full time faculty member at a university in Turkey and had a rather stable life. The motivation that led me to write about free speech was linked to the accelerating censorship of the internet and social media in the country. It was a time that public speech was gradually being restricted by administrative measures as well as self-censorship. Towards the end of 2014, I published an article titled Justifications of Freedom of Expression: Towards a Double-grounded © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 D. Kabasakal Badamchi, Dimensions of Free Speech, Philosophy and Politics Critical Explorations 19, https://doi.org/10.1007/978-3-030-88319-5_1

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Non-consequentialist Approach, which contained the earlier version of the argument in this book that free speech requires a principled justification grounded in the arguments for democracy and autonomy. After the publication of this work, I did not have the opportunity to work on free speech to develop it into a book project during the time I was in Turkey, partly because I had to self-censor, but mostly due to the disruption of my academic life by the political turmoil after the coup attempt in July 2016 in the country. In January 2018, almost one and a half years after I lost my job, I found myself in the position of leaving my country to be able to resume my academic career, which would have been impossible in Turkey due to the discrimination I and thousands of other scholars had to face for political reasons. After the experience of having been forced to leave the country, the book project has gained a more personal and moral meaning in my mind, along with its academic significance, within the context of an academic life in exile. That is, I have begun to consider it to be a personal responsibility to present what I have thought to the world, not because what I say is necessarily ground breaking but because it is a matter of being true to myself as a human being and a scholar in the Dworkinian sense. At an intellectual level, this work is an outcome of my quest to understand why free speech is valuable and how one can make sense of various meanings and reasons for free speech. This quest has led me to look for the answers to the question of what could serve as a strong ground for free speech as a principle. On the way to evaluate the possible answers to this question, first, I have come to realize that a principled justification is required which considers free speech as valuable on its own, as long as it is significant to justify free speech on a strong ground. This is to say that, free speech, in order to be grounded on a strong justification, should be endorsed not as an external value to achieve a particular goal but as a constitutive principle whose absence deprives the entire goal from being possible. This is not to suggest that free speech is the most important value or prior to all other values as such but, rather, to argue that a free speech principle can have a strong ground only on a principled justification when the need to justify the value of free speech is required. Second, I have been persuaded by the idea that a combination of justifications, which takes into account various aspects of the democracy and equal autonomy arguments, is able to provide a stronger foundation to free speech when compared to individual justifications that aim to ground free speech on their own. In line with this, in this book, I have attempted to develop the dimensions of a theoretical framework to justify free speech, which I call the double-grounded principled approach to free speech and apply this framework to specific realms of freedom such as in academia, online media and the debate on hate speech. However, it is significant to note that the double-grounded principled approach is an exploration of a new theoretical framework rather than just a reiteration of the arguments developed by the democracy and autonomy justifications of free speech. For this reason, it revises some of the arguments of the two mentioned theories and keeps some other arguments intact within the scope of its articulation of ideas on free speech.

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Certainly, my endeavor to explore a new theoretical framework has been a reflection of current contextual demands and debates on free speech. Lately, it has become evident that, not only in non-democratic regimes but also in liberal and democratic ones, we need to facilitate the conditions of free speech for sustaining and deepening democracies which are capable of embracing diversity and equality. This demand for more free speech was vocalized by the Harper’s Magazine’s Letter published in July 2020, which was signed by many notable public figures such as Noam Chomsky, Michael Walzer and Michael Ignatief among many others.1 The letter addressed the dangers of growing restrictions on debate in liberal societies and called for freedom and justice. On the other hand, thanks to Black Lives Matter protests, racist hate speech and its damage and harm to democratic societies has come to the attention of many of us. Once again, we have realized that the limits of free speech are an important issue with respect to the debate on justice, freedom and democracy. On what conditions and how racist hate speech can be restricted and how we can sustain a balance between freedom and equality have posed themselves as two significant questions to tackle. The contexts in which both The Harper’s Magazine Letter and the Black Lives Matter protests voice their demands lead us to reconsider the issue of free speech and its limits. In other words, recent developments have demonstrated that we need to find ways to justify and validate the significance of free speech on strong grounds for democracy to flourish. But at the same time, we need to reconsider how democracy is wounded by the inequality perpetuated by racism and racist hate speech. My quest for a new theoretical framework can be seen as an attempt to ground free speech on the basis of the contemporary demands of democracy and justice; freedom and equality. In other words, the proposed theoretical framework of this book can be seen as one of the many possible answers to the questions raised by the global actors that demand more freedom and justice. The book first explores free speech through focusing on its various theoretical dimensions such as different approaches on the possibility of free speech as such, its conceptual circumstances and various possible justifications to ground its value and significance. This theoretical exploration is, at the same time, an attempt to lay out the features of a theoretical framework which justifies free speech on strong principled grounds; the double-grounded principled approach. Then, the book applies the proposed theoretical framework, the double-grounded principled approach, to the realms of two freedoms; academic freedom, media freedom and the debates on hate speech. The goal is to evaluate how and to what extent the double-grounded principled approach can accommodate academic and media freedoms and at the same time, explicate the features of academic freedom and media freedom that are supported from within the proposed theoretical framework.

1

A Letter on Justice and Open Debate, 7 July 2020. Accessed on 22 September 2020. https:// harpers.org/a-letter-on-justice-and-open-debate/

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It is an almost undisputable fact among most scholars from different schools of thought that free speech is one of the essential values of a democratic society. Particularly for some liberal scholars it is an uncompromising principle. Given this, it is significant to discuss the possible arguments that question/criticize the central value of free speech as a principle. The first part of Chap. 2 of this book intends to investigate the skeptical views on free speech by addressing whether free speech skepticism is as convincing as it might seem to be. I particularly focus on the theories of Stanley Fish and Carl Schmitt who develop parallel arguments against liberalism, yet constitute different perspectives in arguing against the possibility of free speech as a principle. Schmitt does not argue against free speech directly. Therefore, my attempt is to reconstruct a skeptical Schmittian view on free speech by analyzing his views on liberalism in general. I intend to demonstrate that there is a place for a skeptical argument against free speech within Schmitt’s criticism of liberalism which is founded on the idea that free speech as a political concept is impossible. Furthermore, I demonstrate that Schmittian skepticism about free speech falls short of justifying the substantive impossibility of free speech regardless of his consistent argument for the conceptual impossibility of free speech as a political issue. Unlike Schmitt, Fish has a considerable literature on free speech where he explains his position quite frankly and at times, provocatively. Mainly, he asserts that the conditions/circumstances of free speech do not exist at all. However, I claim and demonstrate that this argument of Fish does not necessarily translate into the substantive impossibility of free speech per se. In other words, free speech is a right that is grounded in the autonomous capacity of individuals, who are free and equal, to choose. The presence of this capacity, I contend, cannot be judged by the empirical analysis of social circumstances. In the second part of Chap. 3, I analyze whether free speech absolutism supports an absolutist view and demonstrate that, contrary to popular belief, the absolutist position on free speech is not absolutist. I examine the arguments of Justice Hugo Black and Alexander Meiklejohn as two representatives of the absolutist position on free speech. I argue that both supporters of absolute free speech accept regulations on certain types of speech—such as private libel for Meiklejohn and symbolic speech for Hugo Black—in line with their interpretations of the First Amendment. That is; I contend, free speech absolutism is not concerned with whether speech should be regulated but is concerned with the justifiable grounds for regulating certain types of speech. In line with this, I further affirm that this feature of free speech absolutism invalidates the skeptical claim that “there is no such thing as free speech” since the absolutists do not argue for a limitless speech in the name of free speech. Chapter 3 clarifies in what ways we can consider free speech as a theoretical concept broadly speaking. In this sense, this section sets up the conceptual ground to identify the features of free speech as a principle. In the first part of the Chapter, I deal with questions such as “what are the conceptual boundaries of free speech” and “what type of speech falls under the category of free speech”. I claim that speech must be other-regarding, public and communicative in order to fall within the conceptual scope of the free speech principle. In the second part of Chap. 3, I first

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focus on four major justifications for a free speech principle: democracy, autonomy, truth discovery and personal development. However, my goal is limited to determining in which way free speech appears as a principle in these theories rather than examining their arguments in detail. In Chap. 4, I provide a more detailed analysis of each of these theories by particularly noting the differences among various versions of justifications of free speech. Second, in this section, I concentrate on Friedrich Schauer’s theory of free speech to examine to what extent his justification of free speech as an independent principle is able to provide a powerful ground for free speech. Schauer is well-known for his rigorous theorization of free speech as an independent principle; a principle that must be endorsed for its own distinct value. I agree with Schauer on the requirement of an independent principle of free speech, yet I claim that his justification of free speech based on government incompetence is not powerful enough because it is merely a negative justification and far from affirming the positive value of free speech as such. In line with this, I argue that a powerful independent argument for free speech can be constructed by appealing to two justifications—equal autonomy and democratic participation. That is to say, free speech as a constitutive component of autonomy and political participation justifies free speech on the basis of an independent argument from the general principle of liberty and provides a stronger ground for free speech given its capacity to endorse the positive value of free speech as such. Chapter 4 constitutes the major framework of the whole theoretical attempt to provide a new approach to justify free speech because this is where I introduce and explain the dimensions of the double-grounded principled approach, which I argue, is able to ground free speech better than the alternatives. I analyze the major arguments for free speech and contend that both consequentialist and non-consequentialist arguments can provide good justificatory grounds for free speech but a principled and non-consequentialist justification—which is capable of embracing more than one ground for free speech—is required in order to fully recognize the moral and practical significance of free speech as such. I begin Chap. 4 by critically examining John Stuart Mill’s argument for free speech in On Liberty. I argue that Mill’s association of free speech with discovery of truth makes sense with respect to its reliance on skepticism, yet, as long as it is in need of empirical validation, it remains a weak ground for free speech. In other words, I maintain that Mill’s claim about the necessity of free speech for truth discovery has relevance in scientific communities where there is a commitment to the discovery of truth, but it is a weak argument when applied to society as a whole. Like the discovery of truth argument, the personal development argument relies on empirical validation. The argument states that what we say, write and speak has essential importance for our personal development. This kind of argument is close to the felt convictions of many people, yet it is not devoid of problems either. In a parallel manner to the criticism of the discovery of truth argument, I maintain that this argument as well is far from being a strong justificatory ground for free speech. In other words, “the theory offers weaker grounds for free speech since we do not know if empirical validation is possible and, even if it is possible, to what extent this argument might be considered as a justification for free speech, particularly in light

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1 Introduction

of cultural diversity.”2 That is to say, different cultures which with persons identify might value free speech at varying levels; some treat it as a prior value, yet others might not see it as so important for personal development. After evaluating the features of the discovery of truth and personal development arguments, Chap. 4 continues with the assessment of various dimensions of the arguments of democratic participation and equal autonomy. Within the democratic participation argument, I particularly evaluate the theories of the two prominent thinkers, Cass Sunstein and Alexander Meiklejohn. I hold that political speech is prioritized and protected at the highest possible measure in these theories because free speech is viewed as a constitutive ground of democratic deliberation. In line with this, I demonstrate that, on a democratic participation argument, a principled justification is provided for free speech on the grounds of democratic deliberation. Moreover, I examine certain contemporary challenges against the democratic participation argument such as fake news and the status of antidemocratic speech, and investigate the possible ways that the argument can address such issues. According to the autonomy argument, persons, as equal and rational beings, have the right to their autonomous choices and government should provide them the circumstances of advocacy and information that is helpful to make those autonomous choices. I concentrate on the theories of John Stuart Mill, Ronald Dworkin and Thomas Scanlon in particular to see how and on what grounds these theories offer a principled justification for free speech. I maintain that autonomy provides a strong justification for free speech but it fails to distinguish between different categories of speech. Lastly in Chap. 4, upon critically evaluating each justification for free speech, I argue that a combination of equal autonomy and democratic participation provides a strong principled justification for free speech which is superior to the other justifications on their own. I claim that the double-grounded principled approach considers equal autonomy and democratic participation as complementary principles without ignoring the fact that they have weak aspects that need to be rectified.3 First, I delineate that the double-grounded principled approach overcomes the ambiguity with respect to the categories of free speech in the equal autonomy argument by attaching the highest protection to political speech. Second, it provides a solid ground for what to do with un-democratic speech by appealing to the principle of autonomy and including undemocratic speech to its scope. Third, the democratic participation aspect not only underlines the significance of democracy as an essential component of free speech but also recognizes the obstacles generated by power within the democratic discourse. Therefore, it focuses on who is allowed to speak and under what conditions the speakers and listeners can be provided an inclusive democratic political platform.

Devrim Kabasakal Badamchi, “Justifications of Freedom of Speech: Towards a Double-grounded Non-consequentialist Approach”, Philosophy and Social Criticism 41, No.9 (November 2015):914. 3 Badamchi, “Justifications of Freedom of Expression”, 921. 2

1 Introduction

7

Chapters 5 and 6 apply the double-grounded principled approach to the realms of academia and media. My aim is to test the scope of the proposed theoretical framework and investigate to what extent and how the proposed framework is able to incorporate a strong ground for both academic freedom and media freedom separately. Unlike freedom of speech which is concerned with the general freedom of speech of the individuals, academic freedom is concerned with the freedom of the individuals in a specific profession. Chapter 5 focuses on how we can justify academic freedom from general free speech theories and moreover, from the double-grounded principled approach specifically. I begin Chap. 5 by concentrating on how we can make sense of academic freedom given that there can be various definitions such as institutional autonomy, free speech rights of scholars and the right to self-govern. First, I argue that institutional autonomy should predominantly refer to the right of the academics to participate in the government of the academic institutions. In other words, mere administrative autonomy does not guarantee academic freedom on its own as long as academic institutions are governed mostly by professional administrators. Second, I point out that academic freedom as intellectual and professional autonomy signifies that scholars, researchers and teachers have an individual right to express and disseminate their views freely and this individualistic right to autonomy is necessary to protect scholars from the unjustified intervention of all sorts of institutions including university administrations. Then, I focus on two justifications for academic freedom: university as a realm of discovery of truth and independent knowledge production, and university as a realm of democratic free debate. I argue that the first justification must be endorsed for its emphasis on academia as a place where public knowledge is produced, yet it is weak because the discovery of truth argument leaves space for others to speak only because of skepticism. Therefore, I claim that in order to recognize the value of academic freedom, one needs a stronger justification than the discovery of truth argument, namely, one which affirms the value of the search for truth as well. I maintain that we should endorse the university as a place where one can speak freely without the fear of offending society and people who think differently in order to comply with the requirements of academic freedom. Lastly, I examine Ronald Dworkin’s ethical individualist theory in the context of academic freedom and address the parallels between the double-grounded principled approach and his ethical individualism. I conjecture, first, both ethical individualism and the double-grounded principled approach share the judgment that mere instrumental reasons such as discovery of truth are far from providing a strong justification for academic freedom alone. Second, I contend that the double-grounded principled approach shares Dworkin’s endorsement of the right to speak of academics as individuals in line with their personal ethical responsibility to truth and the necessity of an independent democratic culture for exercising free speech rights in academia. The last two sections of Chap. 5 deal with the issue of academic freedom within the context of two different countries—the United Kingdom and Turkey—and aim to reflect on these cases with the lens of the proposed theoretical framework. The section on the UK examines the contemporary neoliberal transformation of higher

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1 Introduction

education as an obstacle to academic freedom. It mainly focuses on the changes in the UK such as precarization of academic labor, managerialism of administration in academia and the transformation of the university into a private corporation in the market, all of which function at the expense of free speech in academia. Moreover, I point out the practices of silencing such as “safe spaces” and “no platforming”, which are popular among the student unions in the UK, to consider whether they pose a threat to academic freedom and of so, how and to what extent. The section on Turkey addresses how authoritarian/autocratic practices function against academic freedom in Turkey. In Turkey, the control of the speech in the universities by the state has been a common legal practice, especially after the establishment of the Institution of Higher Education in 1983. However, there has been a rapid authoritarian transformation in the last couple of years by the introduction of new legal measures such as the abolition of rector elections which gave the President the power to choose and appoint the rectors of all the universities in Turkey. I emphasize that the double-grounded principled approach maintains that academia is a place where scholars produce their work exempt from the intervention of political power and participate freely in the governing of their institutions. The current reality of Turkey might obscure the image of such an ideal but cannot erase it totally as long as scholars do not give up their hopes of a democratic academia. Chapter 6, begins with the discussion of the meaning of media in the contemporary age by highlighting the dimensions and distinct features of online communication as a new form of media. In line with this, I examine certain justifications for media freedom such as discovery of truth and democratic functionality and demonstrate that the double-grounded principled approach to free speech complements a justification for a principled conception of media freedom. The last two sections of Chap. 6 are concerned with the media freedom in the UK and Turkey separately and aim to reflect on these cases with the perspective of the proposed theoretical framework. The section on the UK deals with the regulation of online speech in the UK through the examination of the CTIRU (Counter Terrorism Internet referral Unit). I investigate to what extent the practice of the internet referral units is justifiable on moral grounds; especially with regard to the arguments for media freedom. I contend that both the modus operandi of the CTIRU and the language of the Terrorism Acts might lead to an ambiguity regarding the scope of free speech: some speeches which are tolerable due to their quality of contribution to public political deliberation might be censored/filtered because they might be wrongly labelled as extreme and unlawful. The section of Chap. 6 on Turkey discusses how online speech is regulated in Turkey and to what extent these regulations are in line with the media freedom. I examine specifically the censorship of YouTube, Wikipedia and Twitter to unveil the dimensions that make these censorships unjustifiable when looked through the lenses of the arguments for media freedom and free speech. This debate allows us to concentrate on the reasons why media freedom and free speech are significant in the contexts of authoritarian regimes and how the framework I propose in this book can normatively guide us to ground the significance of media freedom. I contend that most bans in Turkey have been aimed to silence the criticisms of the ruling power

References

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and for this reason, they are unjustified. They have served to prevent the emergence of deliberative platforms where citizens could debate and have generated a politics of fear and censorship. Chapter 7 discusses the limits of free speech by applying the proposed framework of the book to the debate on hate speech. It lays out the reasons why hate speech cannot be viewed as protected political speech and why it has to be regulated on principled grounds. In the first two sections of Chap. 7, I describe the contextual relevance of hate speech debates, describe the possible characteristics of hate speech and categorize different approaches to hate speech within the contemporary political theory literature. I argue that the primary goal of hate speech is not to create a negative state of mind in the target based on the feeling of offence; rather, it generates or contributes to the generation of objective conditions of discrimination and exclusion. In Sect. 7.4 of the Chap. 7, I examine and challenge the arguments—those of Dworkin, Heinze and Baker on hate speech—against the view that hate speech cannot be protected political speech. I claim that the arguments against the regulation of hate speech prioritize the interests of the hate speakers over the interests of the persons targeted by the hate speech and this is non-justifiable on egalitarian grounds. Second, I claim that speakers do not need hate speech to contribute to democratic deliberation and that hate speech is not a reasonable tool to have an impact on decision-making processes. In section five of the Chap. 7, I analyze whether political correctness and offense can be justifiable principles for restricting free speech. I contend that the boundaries of political correctness are too porous and it relies on the concept of offense rather than hate. Therefore, these qualities make political correctness a bad candidate for regulating free speech. Furthermore, I argue that offense alone is also far from justifying the legal regulation of speech but this doesn’t mean that it can’t have any value in civic public life. Then, in Sect. 7.7 of the Chap. 7, I first examine the features of hate speech legislation and jurisprudence in Europe, Canada and the US, and secondly, investigate whether hate speech laws violate democratic legitimacy as claimed by some thinkers such as Heinze and Post. I conclude by arguing that hate speech laws, when the boundaries of hate can be drawn clearly, can serve the ideal of the freedom and equality of all.

References A Letter on Justice and Open Debate, 7 July 2020. Accessed on 22 September 2020. https://harpers. org/a-letter-on-justice-and-open-debate/ Dworkin, Ronald. 1996. We Need a New Interpretation of Academic Freedom. Academic Freedom and the Future of the University Lecture Series, Academe, May–June. Kabasakal Badamchi, Devrim. 2015. Justifications of Freedom of Speech: Towards a DoubleGrounded Non-consequentialist Approach. Philosophy and Social Criticism 41 (9). https://doi. org/10.1177/0191453714564457.

Chapter 2

Two Rival Positions on Free Speech

Abstract This chapter critically examines two approaches that stand in opposition to one another: free speech skepticism and free speech absolutism. I intend to demonstrate that free speech skepticism is not as convincing as it might seem and furthermore, contrary to what we might assume, free speech absolutism does not support full absolutism. First, with respect to free speech skepticism, I analyze the arguments of C. Schmitt and S. Fish as two positions that are critical of the liberal free speech discourse. Even though Schmitt did not argue against free speech directly, I claim that Schmitt’s arguments against liberalism can be valid against free speech as well, and on a Schmittian view, it can be argued that free speech is not possible as a political concept. Nevertheless, I claim that Schmitt’s argument falls short of justifying the substantive impossibility of free speech in domains other than that of the political. S. Fish is more direct in claiming that free speech is not possible, however I claim that his argument does not necessarily translate into a substantive impossibility of free speech as such. Secondly, I intend to challenge the common-sense belief that free speech absolutism entails arguing for unregulated speech without any qualification. To do this, I investigate the arguments of Justice H. Black and A. Meiklejohn on free speech and the First Amendment. I demonstrate that for Meiklejohn, there are categories of speech such as private libel and false advertisement that do not require the full protection of the First Amendment. Moreover, I conjecture, Justice Black does not argue for a limitless license on speech since he admits certain regulations on symbolic speech and speech that can be counted as conduct. Therefore, I contend that free speech absolutism is not concerned with whether we should limit speech but looks for justified grounds for limiting certain types of speech. Keywords Free speech skepticism · Free speech absolutism · Stanley Fish · Carl Schmitt · Alexander Meiklejohn · Justice Hugo Black · The first amendment

In this chapter, I critically examine two theoretical positions on free speech—free speech skepticism and free speech absolutism. In doing this, I intend to investigate in detail how these two extreme positions actually conceptualize free speech and to © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 D. Kabasakal Badamchi, Dimensions of Free Speech, Philosophy and Politics Critical Explorations 19, https://doi.org/10.1007/978-3-030-88319-5_2

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what extent our popular beliefs about them fit with their actual conceptualizations of free speech as such. In other words, I aim to focus on whether the sceptical position is as convincing as it might appear and whether the absolutist position supports full absolutism as we tend to assume. I must also emphasize that I consider the two positions as two distinct and extreme positions in political theory—free speech skepticism as a position external to liberalism, and absolutism as an interpretation of free speech from within the liberal tradition. Upon this consideration, I endeavor to dig into the structure and features of their arguments on free speech. I shall argue that regarding the skeptical position on free speech—both Schmitt and Fish, leaving aside their differences—ail to come up with a coherent position on free speech and that the skeptical argument itself is not as strong as it might seem. Moreover, I shall contend, the absolutist position is not as absolutist as we tend to assume since it leaves room for regulating certain types of speech. This contention invalidates the skeptical claim that “there is no such thing as free speech” because the absolutist position does not argue for limitless speech as the skeptics tend to argue. Stanley Fish is famously skeptical as a result of his rigorous writing on the issue of the impossibility of free speech. His arguments manifest a political realist viewpoint which emphasize the inevitable dependency between moral principles and power and particularity. In this sense, we might infer a parallel vein in C. Schmitt’s theory, esp. his criticism of liberalism, even though he did not directly criticize free speech per se. I intend to interpret these two thinkers as two external critics of liberal free speech who provide us with the foundational assumptions of the sceptical position on free speech in contemporary times. In the popular vision, the absolutist position on free speech is believed to be found in the tradition of the First Amendment. This is understandable to a certain extent esp. considering the differences between the judicial practices on free speech in the US and other parts of the world such as Europe; i.e. the absence of hate speech laws in the US as opposed to Europe. First Amendment represents an important tradition in free speech jurisprudence with its stringent rejection of regulating free speech. With the goal in mind to demonstrate that no position is absolutist on free speech, I shall examine the ideas of the two well-known figures of First Amendment jurisprudence- Alexander Meiklejohn and Justice Hugo Black. Here, I do not aim to devalue the absolutists, rather, by demystifying the absolutist claim, I intend to defend the position against the sceptics such as Fish, who claim that “there is no such thing as free speech” by implying there is no limitless speech.

2.1

Free Speech Skepticism

Populist assertions against free speech can be encountered in daily politics but we might think of philosophical positions that argue against free speech from a conceptual and substantive point of view too. In this chapter, I focus on two theoretical positions which are critical of the liberal free speech rhetoric; Carl Schmitt and

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Stanley Fish. I intend to show that both positions argue from a realist assumption that it is not possible to think of free speech as such; as Stanley Fish famously puts ‘there is no such thing as free speech’. However, I intend to demonstrate that the arguments of Schmitt and Fish regarding the conceptual impossibility of free speech are not necessarily followed by the argument regarding the substantive impossibility of free speech. Put it precisely, ‘there is no free speech’ does not automatically lead to ‘there should not be free speech’ in the theories of Schmitt and Fish. In this sense, I aim to show that the arguments of Schmitt and Fish against free speech indeed fall short of a normative content. This analysis on free speech skepticism is important because Schmitt and Fish constitute paradigmatic critical positions against the possibility of free speech as a (political) concept. Even though they develop parallel arguments against the liberal discourse on free speech, they constitute different perspectives in terms of the way they argue against free speech. In the case of Schmitt, free speech is not possible as a political concept but in the case of Fish, free speech is not possible as a concept at all (ontological impossibility). Thus, it might be considered that these two positions have the capacity to represent the two major philosophical arguments that are skeptical toward free speech.

2.1.1

Schmittian Skepticism About Free Speech

Carl Schmitt develops an argument against liberalism rather than arguing specifically against free speech, yet one may claim that his arguments can hold valid against free speech too. Below, Schmitt’s first criticism regarding liberalism is analyzed by focusing on its various dimensions, then I intend to demonstrate how Schmitt’s criticism of liberalism translates into a criticism of free speech as such. Then, lastly, I focus on why Schmitt is far from developing a substantive normative argument against free speech. Carl Schmitt is certainly one of the most contested thinkers of twentieth century due to his political engagement with the Nazi party and his theoretical perspectives regarding the nature of modern state, sovereignty, rule of law and the meaning of politics. Below, his work The Concept of the Political (TCP) is examined in order to discover the dimensions of his criticism against liberalism and infer a possible argument against free speech within the boundaries of such criticism in his political theory. TCP, written in 1932, explores the nature of the political in the modern world as a realm where the existential distinction between friend and enemy occurs. Schmitt endeavors to show that liberalism negates this nature of the political on two grounds: first, individualism makes it impossible for liberalism to develop a political theory of the state and second, the very nature of the way politics works in liberal discourse

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(compromise and reconciliation) is indeed nonpolitical.1 Below, I unpack the meaning of these assumptions in Schmitt’s view. Let’s focus on the first assumption of Schmitt about liberalism. For Schmitt, any consistent individualism will arrive at the result of the negation of the political (Schmitt 1996, 70). Liberalism reasons to protect individual freedoms from the effect of the totalities such as church and state. This motivation of liberalism builds up a distrust towards state, government and church, and prevents liberalism from developing a positive theory of state, government and politics (Schmitt 1996, 70). Furthermore, on a liberal view, individuals are considered to be the ultimate sovereigns over their bodies and lives. For Schmitt, a demand of the sacrifice of life in case of need by the political entity is not justifiable at all on a liberal view (Schmitt 1996, 71). It is the individual himself who has the ultimate authority to decide on the substance and dimensions of his freedom from an individualistic point of view. Therefore, an authority outside the will of the individual cannot force him to fight against a common enemy. In relation to the above, Dyzenhaus draws our attention to a foundational aspect of Schmitt’s critique of liberalism by noting that for Schmitt, “it is not that liberalism in itself is contradictory, but that, in the attempt to actualize itself, to assert and maintain its control over the public, it becomes contradictory” (Dyzenhaus 1997, 59). For Dyzenhaus, this view of Schmitt might provide us a good ground to understand the dimensions of his critique of liberalism better. In other words, for Schmitt, liberalism, as a discourse or ideology, develops a consistent set of ideas in relation to its core value of individualism. However, the contradiction arises when liberalism asserts that it is neutral in regards to all partial views and it represents the interests of all humanity, since for Schmitt, this is exactly where liberalism starts to operate on a nonpolitical terrain. For Schmitt, the claim of neutrality is brought to the agenda by liberalism in order to postpone and ignore the conflict in politics.2

1

According to John P. McCormick, Schmitt’s critique of liberalism is indeed a critique of modern thought which, in his view, is being inflitrated by the technological, economic and positivistic. He claims, this aspect of his thought is evident in his criticisms of modern parliamentarism and constitutional law. (John P. McCormick, Carl Schmitt’s Critique of Liberalism-Against Politics as Technology (Cambridge, New York: Cambridge University Press, 1997) 2 For a Kantian response to the criticism of Schmitt on liberal neutrality, see Heiner Bielefeldt, “Carl Schmitt’s Critique of Liberalism: Systematic Reconstruction and countercriticism”, Canadian Journal of Law and Jurisprudence 10, Number 1 (1997), 65–75. In developing his response to Schmitt, Bielefeldt draws a distinction between Weltanschauwgsneutralitat and Wertneutralitat. He notes that whereas Wertneutralitat amounts to a complete lack of ethical and political commitment Weltanschauwgsneutralitat involves a normative idea, especially an idea which is based on a Kantian liberalism; that is respect for the dignity of every human being as an autonomous subject. He continues: “It is only within this normative framework of equal freedom and participation that the concept of neutrality can make sense. Neutrality is not a principle that stands on its own, as Carl Schmitt seems to assume, and liberal neutrality should by no means provide a pretext for remaining neutral between good and evil, right and wrong, or between justice and injustice. Rather, neutrality serves as an antidote to all sorts of biases and discrimination. Weltanschauungsneutralitat for instance, is a way of preventing discrimination based on religion and Weltanschauung.” Thus, for him, liberal neutrality can go well with political conflict since it is a fighting ideology against all kinds of discrimination and injustice.

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Schmitt’s argument against liberalism is based on a second assumption that liberalism operates on a nonpolitical terrain. Schmitt notes that liberal concepts typically move between ethics (intellectuality) and economics (trade) (Schmitt 1996, 71). In line with this, the political as a domain of battle and conflict is annihilated on a liberal view; the political concept of battle is replaced by competition in the domain of economics and discussion in the domain of ethics (intellectual domain) (Schmitt 1996, 71).3 Moreover, as a result of the goal to annihilate the political, on a liberal view, the state loses its character and turns into society; on the ethical- intellectual side into an ideological humanitarian conception of humanity, and on the economic side into an economic-technical system of production (Schmitt 1996, 72). This means the state is no longer seen as the realm of conflict and battle but is rather considered as a realm of economic competition and intellectual-ethical debate. On a Shmittian view, this perspective is totally coherent with the individualism of liberalism which makes it impossible to think of the state as a united political entity that faces a common public enemy. In Political Theology: Four Chapters on the Concept of Sovereignty published in 1922, where he famously argued that the sovereign is he who decides on the exception, Schmitt claims that liberal constitutionalism disregards the exception by continuously focusing on the normal (Schmitt 2005, 14). This argument of him can be read in parallel with his critique of liberalism’s negation of the political. Liberal constitutionalism, by either negating or marginalizing the exception, indeed, negates the political since the moment of exception provides the essence of the political in terms of defining friend and foe. This means the moment when the sovereign decides on the exception is a political moment of defining the public enemy. Having pointed out the structure of Schmitt’s criticism against liberalism, I contend that his argument against liberalism can be viewed as an argument against free speech too. In relation to both assumptions of Schmitt’s criticism that liberalism negates the political; individualism and operation on a nonpolitical domain; one may argue that free speech is not possible as a political concept on a Schmittian view. In a liberal discourse, free speech is considered as a right of an individual and therefore, it is a principle that is founded on individualism. As long as individuals are the main agents, there is no space for the political in Schmitt’s eyes. As he claims, any consistent individualism will have to negate the political. The domain of the

3

Chantal Mouffe draws on this argument of Schmitt regarding the exclusion of conflict in liberalism for criticizing deliberative democracy and pointing out its contradictions by specifically focusing on liberal understanding of consensus and citizenship. For her, the goal to annihilate exclusion and build an all inclusive procedure of liberal democratic project is impossible since there is no agreement without an exclusion which is the outcome of conflict in political and social life. “Carl Schmitt and the Paradox of Liberal Democracy”, Canadian Journal of Law and Jurisprudence 10, Number 1(1997): 21–33. See also Chantal Mouffe, The Return of the Political (London: Verso, 1993).

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political is identified by the distinction between friend and enemy and individuals alone cannot have enemies; only a united group of people, such as a state, can have an enemy. Therefore, free speech cannot be seen as a political principle/value at all. This means we cannot think of free speech as a political concept. As seen above, Schmitt thinks that liberalism negates the political by operating on totally nonpolitical domains; ethical-intellectual and economic domains. Schmitt reasons that this is a consequence of the goal of liberalism to annihilate the political as a realm of conflict and replace it with competition and discussion. Free speech makes sense only in the context of discussion where the right to speak of an individual is prioritized and for this reason, on a Schmittian view, free speech belongs to the intellectual domain rather than the domain of the political. This qualification makes free speech a nonpolitical issue in the first place. In line with the above, I contend that there is a place in Schmitt’s theory that enables him to argue for the conceptual impossibility of free speech as a political issue. This conclusion is valid as long as Schmitt’s theory considers the domain of the political and the domain of free speech as two separate realms. Moreover, we might infer that Schmitt’s theory implies a substantive impossibility of free speech in the domain of the political too. However, Schmitt’s argument falls short of justifying the substantive impossibility of free speech in domains other than that of the political. In other words, Schmitt cannot argue consistently that free speech should not exist as a principle in other realms of human activity such as intellectual and economic realms. In this sense, Schmitt’s theory is far from developing an argument on the substantive impossibility of free speech as such.

2.1.2

Stanley Fish’s Skepticism on Free Speech

Schmitt and Fish develop parallel arguments to criticize the discursive structure of liberalism. Both of them question liberal neutrality and argue that liberalism’s appeal to procedural discussion leads to the negation of power and conflict which define modern politics. In Schmitt’s world, liberalism’s claim of neutrality validates the fact that liberalism is nonpolitical. By appealing to neutrality, liberalism indeed manifests its own nonpolitical nature. In Fish’s view, liberalism does not exist at all due to its appeal to neutrality. In other words, every concept including neutrality has to be defined through political conflict and this makes neutrality an impossible concept. Below, first, I intend to understand what Fish means by claiming that liberalism does not exist. Then, I examine the structure of Fish’s argument that there is no such thing as free speech. Lastly, I discuss whether Fish’s argument against free speech presents a normative claim in terms of demonstrating the substantive impossibility of free speech as such. Fish challenges the liberal view that locates reason and rationality above all partial beliefs. In other words, for Fish, reason itself is not neutral and does indeed rest on partial belief: “in fact reasons always come from somewhere, and where they

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come from is precisely the realm to which they are (rhetorically) opposed, the realm of particular (angled, partisan, biased) assumptions and agendas" (Fish 1994, 2). In line with the above argument, Fish asserts that neutrality and impartiality to which liberalism appeal as a moral and political ground indeed is a partial ground. In this sense, liberalism has a particular moral agenda in terms of privileging the individual over the community, the cognitive over the affective and the abstract over the particular (Fish 1994, 2). For Fish, any attempt to define concepts (principles) such as neutrality, impartiality, fairness etc. “. . .will always and necessarily proceed from the vantage point of some currently unexamined assumptions about the way life is, or should be. . . .” and there are “no neutral principles, only so-called principles that are already informed by the substantive content to which they are rhetorically opposed” (Fish 1999, 3–4). Therefore, liberalism does not have the content it believes it has since there is no neutrality as such. In the eyes of Fish, it is liberalism’s presentation of neutrality as a concept that is not informed by any substantive partiality which makes neutral principles so useful for political and rhetorical manipulation. For him, the claim for neutrality provides a ground for the disguise of any real substantive worldview behind the principle and paves the way for imposition of any partiality that presents itself as neutral, which might have unwanted consequences from a liberal point of view (Fish 1999, 4). Echoing Schmitt’s warning against the usage of the nonpolitical liberal concept of humanity, Fish emphasizes the potential of empty-looking neutral concepts to be filled in by any kind of power/partiality. Fish’s view on the impossibility of liberalism is fuelled by his emphasis on the practical impossibility of agreement on a reason as a reason for everyone. This is a point that challenges the neutrality claim of liberalism too. He argues that “persons embedded within different discursive systems will not be able to hear the other’s reasons as reasons, but only as errors or even delusions.” (Fish 1994, 2). Reasons representing incommensurable differences make it impossible to see one particular reason as a reason that is acceptable for others. In line with the above-mentioned claims, Fish develops an argument about the impossibility of free speech which is parallel to his criticism of liberalism. He claims that free speech is conceptually impossible because the conditions of speech being free are unrealizable. That is to say, it is impossible to separate conduct from speech since what we say is always laden with consequences, which are part of human activity (Fish 1994, 10–11). In other words, speech is an act of our daily ideological and political struggle which has inevitable consequences. In this sense, as neutrality is impossible due to the fact that it is based on a partial worldview, free speech is impossible since it is always subject to a political and partial definition. Moreover Fish aims to demonstrate that First Amendment principles do not constitute a relevant reference point on the production of speech either. On this matter, he criticizes the way the First Amendment supporters differentiate between free speech and speech that is subject to regulation. Here, he refers to two methods of differentiation which are both irrelevant. First, he mentions that First Amendment supporters prefer to appeal to make a distinction between speech and action in order to distinguish speech that has to be protected from the speech that has to be

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regulated. For Fish, this endeavour is futile since every kind of speech is somehow a mode of conduct, which makes the very attempt of distinction between speech and action is doomed to fail (Fish 1994, 3–4). For Fish, some First Amendment supporters appeal to a particular separation within the speech-action distinction by claiming that some forms of speech are not really speech but in fact fighting words to incite violence or as the court declares in Chaplinsky v. New Hampshire (1942), “words likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” (Fish 1994, 3–4). Fish asserts that this way of demarcation between words that are purely expressive and words that are provocative to the average person is problematic because the real separation is indeed between the words that are provocative to the average person and words that are provocative to non-average persons (Fish 1994, 4). In other words, for him, it is impossible to define what kind of speech might be provocative to non-average groups since every kind of speech is potentially a fighting word or might be considered as a fighting word in the future (Fish 1994, 4). In addition to these criticisms he makes against the method of separation between regulated and free speech, Fish challenges a possible argument of free speech absolutism that supports an absolute non-regulation of any kind of speech. A First Amendment purist might claim that total freedom of expression is the primary value and trumps anything else, no matter what. Fish’s answer to such a challenge is that freedom of expression would only be a primary value when talking is not taken seriously and when what is being said does not matter to anyone (Fish 1994, 4). Such contexts are artificially bounded spaces where speech is not taken seriously, i.e. Hyde Park Corner or a talk show on TV. In other words, Fish thinks that free speech absolutism in the sense of total non-regulation can be nothing more than a dream which can never be fulfilled in reality. In the view of Fish, the appeal to First Amendment principles in order to define free speech is inevitably a political and partial endeavour in contrast with what First Amendment supporters believe. It is not a neutral endeavour which is outside and above politics. In this sense, Fish claims that “they (First Amendment principles) do not constitute a politics-free perspective because the shape in which they are invoked will always be political, will always, that is, be the result of having drawn the relevant line (between speech and action, or between high-value speech and low-value speech, or between words essential to the expression of ideas and fighting words) in a way that is favourable to some interests and indifferent or hostile to others.” (Fish 1994, 10). This brings us to the conclusion that there is no free speech because the very definition of the conditions which make speech free are merged with partiality and politics. Fish argues that free speech is conceptually impossible by pointing out that the conditions of free speech do not exist at all. It can be claimed that the conceptual impossibility of free speech makes free speech substantively impossible as well on Fish’s view. Fish arrives at this conclusion by claiming that defining free speech is always subject to partial decisions which are informed by the interest of some against

2.2 Free Speech Absolutism

19

the others. Put exactly, for Fish, judges are not impartial in claiming which type of speech should be counted as free protected speech and therefore, free speech as a substantive normative concept does not exist at all. Fish points out the impact of power and various interests in society on free speech as a normative principle and he has good reasons to point this out as far as the free speech debates are concerned. In dealing with the actual cases of conflict over free speech, it would be unrealistic to deny the role of power and impartiality. However, I do not think that Fish’s claim about the conceptual impossibility of free speech necessarily translates into the substantive impossibility of free speech per se. Free speech as a principle is a right that is grounded in the capacity of individuals who are equal and free in a political society. That is to say, the right to free speech is beyond the politics and partiality of defining the limits of what is free speech and what is not. It is a right that is presupposed in the autonomous capacity of individuals who are to be heard and at the same time, have a right to listen to the views of others. Put precisely, free speech is a universal principle regardless of the impact of impartiality in defining the substantive boundaries of the speech that should be protected. Secondly, Fish’s argument that free speech only exists in the contexts where speech is not taken seriously is flawed as well. Indeed we can argue for the opposite view that free speech is only possible under the conditions of genuine communication where speech is taken seriously. One of the conditions of free speech is its quality of being other-regarding in the sense that we can only consider the existence of free speech in a context where communication is the goal of the activity. Therefore, free speech absolutism in the way Fish describes does not exist at all. I agree with him that a world that does not regulate speech at all is nothing more than a dream but no supporter of free speech claims that such a world exists either.

2.2

Free Speech Absolutism

The popular understanding regards free speech absolutism as the idea that speech should be totally unregulated and unrestricted in order to be qualified as free regardless of the context and circumstances. In line with this assumption, it is common too to hold that absolute free speech does not exist since no conditions in the world can justify such an absolutist position on free speech. Judging from these two popular judgments, the natural conclusion is ‘free speech absolutism is wrong’. However, I believe the right question to ask is: “to what extent absolute is free speech absolutism?", particularly because absolutism as an ideal type could not exist at all. Below, I intend to focus on the discourse of the First Amendment absolutism to examine the meaning and limits of absolutism on free speech. In particular, I restrain my analysis by referring to the arguments of Justice Hugo L. Black and

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Alexander Meiklejohn.4 Through the examination of certain ideas of these two supporters of absolute First Amendment, I intend to challenge the common sense belief that free speech absolutism is about arguing for unregulated speech without any qualification. The choice of these two figures for analysis might seem arbitrary at first sight, yet their exchange and the way they recognize each other’s opinions have utmost significance for grasping the underlying principles of free speech absolutism.

2.2.1

Justice Hugo L. Black’s Absolutism

Known as one of the persistent supporters of free speech absolutism, Justice Hugo Black’s ideas and jurisprudence on free speech are illuminating to understand the meaning and limits of the First Amendment. After serving as a senator representing Alabama from 1927 to 1937, he was appointed as a justice to the Supreme Court by Franklin Roosevelt in 1937. He served as an associate justice at the Supreme Court until 1971.Within the context of this text, I focus on some of his most significant opinions regarding the Supreme Court’s decisions on free speech controversies and also his speech at New York University School of Law’s James Madison Lecture in 1960 which was later published in the NYU Law Review as ‘Bill of Rights”. Justice Black, in his speech at NYU Law School in 1960 openly and boldly commented on the First Amendment that: ““Congress shall make no law” is composed of plain words, easily understood. The framers knew this.” (Black 1960, 874). For him, the wording was so clear that all he does is follow the words of the First Amendment that “Congress shall make no law. . .abridging the freedom of speech.” He was not trying to extra-read or comment on the meaning of the First Amendment. The reason for him to emphasize the absolute banning of the Congress from making law abridging free speech is closely connected to his conception of democracy and the relation between democracy and free speech. In his view, it is only by way of free speech, that democracy can be sustained and arbitrary power and tyranny can be prevented. Free speech is the enemy of force and tyranny. Thus he claims: Experience all over the world has demonstrated, I fear, that the distance between stable, orderly government and one that has been taken over by force is not so great as we have assumed. Our own free system to live and progress has to have intelligent citizens, citizens who cannot only think and speak and write to influence people, but citizens who are free to do that without fear of governmental censorship or reprisal. (Black 1960, 880)

4

For a quite recent and rigorous defense of an absolutist position on free speech, see Mathew Kramer, Freedom of Expression as Self-Restraint (Oxford University Press, 15 March 2021). Kramer defends a position that underlines the moral absoluteness of freedom of expression and that freedom of expression is always and absolutely binding. In an attempt to develop a more robust position as compared to First Amendment jurispuridence, he deliniates the boundaries of state action quite narrowly. He imposes certain principles on government to ensure that the right to freedom of expression shall be practiced freely: communication neutrality, subject neutrality, viewpoint neutrality, speaker neutrality. In other words, restrictions on the basis of whether speech is communicative or not, the content of the speech or who is speaking etc. are not justifiable.

2.2 Free Speech Absolutism

21

We hear more regarding the meaning of free speech from Justice Black in his speech as a tribute to Alexander Meiklejohn at a memorial service on January 15, 1965 held in Washington DC. Emphasizing how Meiklejohn and his ideas on free speech are common, he said: “. . .Neither he nor I oppose full freedom to fully discuss both sides of any public question, no matter how unpopular one side may be. We agreed that where a belief can be argued against, there likewise must be freedom to argue for it.” (Black et al. 1965, 368). For him, this conception of free speech is an interpretation of the First Amendment which is manifestly clear from the wording that “Congress shall make no law . . .abridging the freedom of speech or press.” The First Amendment is necessary and significant for keeping democracy alive in the eyes of Justice Black. Thus he mentions, when expressing his admiration and appreciation for Meiklejohn, that Meiklejohn fought for the “belief that if this country is to remain free, the minds, the tongues, and the pens of people must not be shackled.” (Black et al. 1965, 368). We have viewed that, in the eyes of Black, the First Amendment is necessary for sustaining free speech and democracy and it should be interpreted as banning political power from regulating the realm of free speech. However, more needs to be considered in order to understand the limits and meaning of the absolutism of Justice Black. Therefore, it might be a good idea to think over his free speech jurisdiction and his comments considering certain decisions of the Supreme Court. Throughout his service to the Supreme Court, Justice Black had to face many complex cases of free speech. As Paris and McMahon pointed out, there are certain principles that guided Black in coming up with comments on issues of the First Amendment: first, Black subjected regulations that were vague and overbroad to very strict scrutiny, and sought to impose on the government to establish clear regulations of conduct that burdened speech (Paris and McMahon 2015, 79–80). Second, in the balancing of the interests, he emphasized that matters of government convenience should not trump the robust protection of speech. Third, media bans had to be strictly scrutinized in order to prevent the government from disabling the communication of ordinary powerless citizens (Paris and McMahon 2015, 79–80). According to Paris and McMahon, these principles enabled Black to come up with speech protective decisions. However, Black allowed government regulation regarding the cases where he thought the regulation impacted the conduct but not the speech. He distinguished between pure speech and conduct- including symbolic speech which, for him, can be regulated under certain circumstances. Moreover, in cases which he considered that there was coercion and threat rather than speech, he favored government regulation. For Justice Black, the free expression of ideas that have public importance is always the most essential component of a democracy and is fully supported by the First Amendment. We can observe his attitude about this clearly in his comments on United Public Workers v. Mitchell and Dennis v. United States (1951). In United Public Workers v. Mitchell, Black dissented over the decision of the closely divided court that upheld the restrictions of the Hatch Act of 1940 that prohibits the partisan political activities of federal employees. Employees retained their right to vote and to express their opinions but they could not actively engage in any political campaigns or political management (Paris and McMahon 2015, 84). Black insisted that the act is unconstitutional and that it did not matter that employees retained their right to vote. He insisted that “popular government, to be effective, must permit and

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encourage much wider political activity by all the people.” (Paris and McMahon 2015, 84–85). In Dennis v. United States in 1951, Justice Black dissented the decision of the court that upheld the Smith Act conviction of the Communist Party for advocating violent overthrow of the United States. Black, in opposing the decision of conviction of Eugene Dennis and ten other members of the Communist party, claimed that the indictment of conspiracy to organize a political party to overthrow the US was a form of prior censorship of speech and press (Ball 1996, 195). For him, Smith Act as a regulation of the Congress is not in line with the First Amendment since it suppresses free speech. Furthermore, it is the duty of the Supreme Court to perform the judicial review of legislation regardless of the content of the views that are in question (whether they are unorthodox or not) (Ball 1996, 195). Indeed he rightly argues that “the Amendment as so construed is not likely to protect any but those “safe” or unorthodox views which rarely need its protection.” (Ball 1996, 195). As evident from above statements of Black, he prioritized the protection of free speech and interpreted the First Amendment as a principle which is vital for a functioning democracy. Having said this, it is significant to point out how he distinguished between speech and conduct and interpreted the First Amendment regarding this distinction to understand where the line should be drawn for protected speech. It can be claimed that anything other than speech, press, peaceable assembly or religion was not entitled to the full protection of the First Amendment in the eyes of Black (Ball 1996, 204). In line with this, as long as he thought the regulation affects the conduct rather than speech, Justice Black admitted regulation. Moreover, in the cases of symbolic speech, he was flexible in admitting regulation too. In 1945, in Marsh v. Alabama, Justice Black emphasized the significance of the First Amendment protection of speech which is an integral part of conduct. The town manager of Chickasaw, Alabama, owned by the Gulf Shipbuilding Corporation, had denied Grace Marsh the activity of preaching on the sidewalks of the town’s business blocks. Marsh was arrested by the Sheriff for violating Alabama’s trespass statute and later convicted for entering and remaining on the property of another (Ball 1996, 204). In this decision, Justice Black mentioned that the private town as an equivalent of a public town should not restrict the fundamental First Amendment rights of persons. If the regulation of conduct was allowed, that would mean to restrict free speech. In 1968, in the case of Amalgamated Food Employees Union Local v Plaza, Logan Valley, Justice Black dissented the court decision. Weis Supermarket in the plaza employed non-union workers and the union picketed in front of the store to talk to the employees. After two weeks, the owners of the mall and the supermarket prohibited the union from picketing on their private property. The union appealed to the Pennsylvania Supreme Court, yet the court upheld the injunction order. Therefore the case came to the Supreme Court. The Court decided on a majority opinion that peaceful picketing on private property is protected by the First Amendment. Justice Black, dissented by arguing that union protestors did not have a constitutional right to have Weis provide them a place to protest against its personnel policies (Ball 1996, 205). Here, Black opposed the idea that the case resembled

2.2 Free Speech Absolutism

23

the Marsh decision, since a supermarket is not an equivalent of a town, be it private or public. Here, Justice Black, as it appears, considered picketing at a private property as a conduct that does not amount to a public speech. In 1969, in the case of Tinker v. Des Moines Independent Community School District, the Supreme Court invalidated the suspension of students who wore black armbands to school to protest Vietnam War. Justice Black dissented the decision by claiming that students’ action was conduct and not speech, therefore it can be regulated by the school authorities (Ball 1996, 207). He even argued further that even if it were pure speech, the school authorities had a right to regulate the time, manner and place of such pure symbolic speech (Ball 1996, 207). As observable, symbolic speech for Black, does not have the absolute protection of the First Amendment as in the case of pure speech.

2.2.2

Alexander Meiklejohn’s Absolutism

In his article titled The First Amendment is Absolute, Meiklejohn points out the main features of an absolutist position on the First Amendment. First he begins by referring to the position of Justice Hugo Black’s absolutism through interpreting his opinions in The Bill of Rights. He emphasizes that Black, as an absolutist, argues that the provisions of the Bill of Rights are universal (Meiklejohn 1961, 243). As universals, the provisions of the Bill of Rights refer to a restriction on the conduct of government regardless of their scope and character in particular. Meiklejohn considers that this position of Black applies to his position on the First Amendment as well. He analyzes the opposing arguments developed by non-absolutist Justice Harlan against Justice Black. He claims that Justice Harlan’s conception of absolutism as “unlimited license to talk” is misleading (Meiklejohn 1961, 249). In other words, he notes, “the freedom that the First Amendment protects is not, then, an absence of regulation. It is the presence of self-government.” (Meiklejohn 1961, 249). He considers the First Amendment as a principle that protects the autonomy of the citizens who are the real power holders to govern in a democracy. Put this way, interpreting the First Amendment as absolute amounts to allowing citizens to govern by way of free speech in the view of Meiklejohn. Meiklejohn’s clarification is significant for having a clear insight on the meaning and limits of absolutism since there is a common widespread conception about absolutism that it refers to an unlimited license to talk. However, as Meiklejohn emphasized, absolutism does not refer to the absence of regulation but to the universal principle that protects the self-governing capacity of citizens in a democracy. What is the scope of the First Amendment? Meiklejohn clearly states that “the First Amendment, as seen in its constitutional setting, forbids Congress to abridge the freedom of citizens’ speech, press, peaceable assembly, or petition, whenever those activities are utilized for the governing of the nation.” (Meiklejohn 1961, 256). Here, he emphasizes that the Constitution gives all the people the rights that it gives

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to the legislative agents in order to protect them from being questioned due to the speeches they make when using their delegated powers. Meiklejohn adds to the list of the rights that are protected by the First Amendment—speech, press, peaceable assembly or petition—also the right to vote. He notes that freedom of voting, as the official expression of a citizen’s judgment on issues of public policies, should be absolutely protected and should not be manipulated or questioned at all (Meiklejohn 1961, 256). This is in line with his emphasis that the First Amendment indeed protects the right to self-govern. Voting itself is the mainstream way of participating in the power of government for citizens under the conditions of representative democracy and therefore, has both real and symbolic meaning. Moreover, Meiklejohn lists other forms of freedoms that should be under the protection of the First Amendment such as freedom of education, freedom to access to the philosophical and scientific knowledge, literature and arts, public discussion of public issues together with the spreading of opinion and information bearing on those issues (Meiklejohn 1961, 245). He considers these freedoms essential for the public participation of citizens in a democracy. Without the protection of these freedoms, the activity of governing in the real sense is not possible in the view of Meiklejohn. Regarding the scope of the First Amendment, Meiklejohn makes further clarifications such as the distinction between belief and communication. He asserts that a citizen may be told where, when and in what manner he may speak, write, assemble and so on, but he may not be told what he shall believe and what he shall not (Meiklejohn 1961, 245). The citizen is the true sovereign in deciding on what to believe and this power is an absolute one that has to be protected. Moreover, one might think of many cases of speech that do not fall under the category of First Amendment protection such as private libel, false advertisement, etc. The criterion for protection is always whether the speech contributes to activity of public governing or not. For instance, while private libel is not protected by the First Amendment, political libel or seditious libel is (Meiklejohn 1961, 245). The same principle applies to obscenity in the view of Meiklejohn for he argues: “literature and arts are protected because they have a “social importance” which I have called a “governing” importance.” (Meiklejohn 1961, 262). Arts and literature provide us insight on what human beings and the world are, and in what directions they can be influenced. In addition to this, citizens are the ultimate sovereign on their decisions regarding what to write, read and see. Therefore, no other authority is allowed to restrain their capacity of self-governing due to the choices that they hold.5 As Meiklejohn notes openly, free speech in the sense of a limitless license to talk does not exist. There are certainly categories of speech that do not require full 5

Martin Redish criticizes Meiklejohn for not being able to comply with the basic premise of his theory that no superior authority should restrain the citizen’s decision regarding what to speak, write, listen and see. The main argument of Redish is that as a form of democratic theory of the First Amendment, Meiklejohn’s theory is based on a notion of what is good and what is not for the citizens to choose. Meiklejohn prefers common public activity over private individual choice and

2.3 Conclusion

25

protection of the First Amendment and therefore, the common misunderstanding that considers absolutism as arguing for limitless and unregulated speech is groundless. As we observed, Justice Black does not argue for a limitless license on speech either since he admits certain regulations on symbolic speech and speech that can be counted as conduct. Put more precisely, absolutism is not concerned with whether we should limit speech but looks for justified grounds for limiting certain types of speech as opposed to fully protected speech.

2.3

Conclusion

In this chapter, I analyzed the arguments of two extreme positions on free speechfree speech scepticism and free speech absolutism. First, I focused critically on the views of Stanley Fish and C. Schmitt as two complementary sceptical positions on free speech which question the possibility of free speech as such. As laid out above, Fish’s argument on the impossibility of free speech benefits from two supporting claims: first, he emphasizes the role of partiality and power in defining what free speech is and second, he conceptualizes free speech as limitless and totally unregulated talk (such as the speeches in the Hyde Park Free Speech Corner) and argues that free speech is possible only when speech is not taken seriously. I argued against the first of Fish’s claims by underlying the meaning of free speech as a universal principle: Free speech is a right that is presupposed in the autonomous capacity of individuals and this is valid in spite of the impact of partiality in defining the substantive boundaries of the speech that should be protected. In response to his second criticism of free speech, I argued that, contrary to what Fish claims, free speech exists in the circumstances where speech is taken seriously and this is because we can talk about free speech only when it is public, other-regarding and communicative. I also contended that, the conceptual impossibility of free speech that Fish emphasizes in both of his sceptical arguments, is not necessarily followed by a an argument about the substantive impossibility of free speech- i.e. an argument that claims free speech should not exist or free speech is not morally valuable. This means conceptual impossibility does not devalue the free speech principle as he claims it would. I contended that, C. Schmitt’s criticism of liberalism can be re-constructed as a sceptical argument against free speech and this reconstruction complements Fish’s scepticism on free speech. Schmitt criticizes liberalism for two reasons: first, for

interest. This preference is manifested in his distinction between protected public speech and regulated private speech. See Adversary First Amendment (Stanford University Press, 2014):29–31. One might agree with Redish to a certain extent because Meiklejohn views democracy as a collective activity through which citizens exercise their governing power. From time to time, he also emphasizes the autonomy and autonomous choice of the individual but the most important foundation seems to be the collective over the individual in his view.

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Schmitt, liberalism’s central focus on the individual, either to protect individual rights or by presenting individuals as ultimate sovereign over their will, leads to the negation of the political since this view prevents the development of a positive view of the state. Secondly, liberalism operates on a non-political terrain by reducing conflicts and antagonisms into mere differences and competitions in the intellectual and economic world. In line with such criticisms of his on liberalism, I argued that on a Schmittian view, one cannot speak of free speech as a political concept since free speech is a right of an individual, a concept which negates the political. Moreover, I claimed free speech presupposes discussion rather than conflict and for this reason, by its very nature it belongs to a non-political domain in the eyes of Schmitt. In response to a Schmittian scepticism of free speech, I also underlined that Schmitt’s argument of conceptual impossibility of free speech as a political concept does not necessarily require the substantive impossibility of free speech in the domain of economics and the intellectual realm. In other words, Schmittian scepticism would be silent on whether free speech is a valuable principle/value in non-political domains. Upon the analysis of the arguments of the two above-mentioned thinkers, I have contended that free speech scepticism is not as convincing as it might seem. In the second part of the chapter, I examined two free speech absolutists- Justice Hugo Black and Alexander Meiklejohn- to investigate to what extent the protection of free speech is absolute on an absolutist position on free speech. I started my analysis by emphasizing that both figures consider the First Amendment as a principle which is vital for the protection of free speech and the functioning of democracy. For Justice Black, the expression of ideas that has public importance should always be protected by the First Amendment. In a similar sense, Meiklejohn contends that the First Amendment protects citizen’s right to govern themselves. In line with their views on the First Amendment, I contended that both thinkers are quite firm on the need to regulate certain types of speech. We have observed that anything other than speech, press, peaceable assembly or religion was not entitled to the full protection of the First Amendment in the eyes of Black. This is in line with his prioritization of the protection of speech over conduct. In a parallel vein, Meiklejohn considers speech that is vital for self-governing as entitled to the protection of the First Amendment: speech, press, peaceable assembly or petition—also the right to vote. But, as I mentioned, he also emphasized that limitless licence to talk does not exist and certain speech such as private libel and false advertisement might be regulated since they do not contribute to the self-governing of the citizens. As a consequence, by way of examining the views of Justice Black and Meiklejohn, I concluded that free speech absolutism does not argue for limitless speech as we tend to think of, but rather it draws the boundaries of justifiable regulations on certain types of speech. This is a claim that invalidates the sceptical argument that “there is no such thing as free speech” because the absolutist position does not argue that limitless speech exists.

References

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References Ball, Howard. 1996. Hugo L. Black: Cold Steel Warrior. Oxford University Press. Bielefeldt, Heiner. 1997. Carl Schmitt’s Critique of Liberalism: Systematic Reconstruction and countercriticism. Canadian Journal of Law and Jurisprudence 10 (1): 65–75. Black, Hugo L. 1960. The Bill of Rights. New York University Law Review 35: 865–881. Dyzenhaus, David. 1997. Carl Schmitt’s Challenge to Liberalism. Canadian Journal of Law and Jurisprudence 10: 3. Fish, Stanley. 1994. There is No Such Thing as Free Speech and It Is Good Thing Too. New York: Oxford University Press. ———. 1999. The Trouble with the Principle. Cambridge/London: Harvard University Press. Kramer, Mathew. 2019. Freedom of Expression as Self-Restraint. Oxford: Oxford University Press. McCormick, John P. 1997. Carl Schmitt’s Critique of Liberalism-Against Politics as Technology. Cambridge/New York: Cambridge University Press. Meiklejohn, Alexander. 1961. The First Amendment Is an Absolute. The Supreme Court Review 1961: 245–266. Mouffe, Chantal. 1993. The Return of the Political. London: Verso. Paris, Michael, and Kevin J. McMahon. 2015. Absolutism and Democracy: Hugo L. Black’s Free Speech Jurisprudence. In Judging Free Speech, ed. J. Knowles Helen and B. Lichtman Steven. New York: Palgrave Macmillan. Powel, John Walker, L. Black Hugo, et al. 1965. Tribute to Alexander Meiklejohn. AAUP Bulletin 51 (4): 366–373. Reddish, Martin H. 2014. The Adversary First Amendment-Free Expression and the Foundations of American Democracy. Stanford University Press. Schmitt, Carl. 1996. The Concept of the Political. Trans. George Schwab. The University of Chicago Press. ———. 2005. Political Theology: Four Chapters on the Concept of Sovereignty. Trans. George Schwab. The University of Chicago Press.

Chapter 3

Setting the Conceptual Ground

Abstract This chapter intends to outline the features of free speech as a concept and as a principle First, I describe the conceptual features of speech that can be counted as free speech. I state that speech has to be public in the sense of aiming to be heard by others and at the same time communicative. In this manner, I claim, speech contains a communicated content, communicating agent and the listener/receiver of the communicated content. Next, I investigate in which sense free speech is a principle. I maintain that free speech requires a separate argument that explains its peculiar significance in order to be regarded as an independent principle. In line with this, I claim that the discovery of truth and personal development justifications fail to provide independent arguments for free speech because they value free speech on instrumental grounds alone. On the other hand, I argue that the justifications of equal autonomy and democratic participation can provide independent arguments for the free speech principle. On a democracy argument, free speech is portrayed as a constitutive circumstance of genuine democratic participation and on an autonomy argument, free speech is a constitutive condition of the citizens’ use of their rights to autonomous choices. Finally, I critically analyze F. Schauer’s conception of an independent free speech principle and claim that a free speech principle based on government incompetence does not provide a strong enough ground for free speech because it is merely a negative justification and far from affirming the positive value of free speech as such. Keywords Free speech · Free speech principle · Friedrich Schauer

This chapter aims to clarify in what ways we can consider free speech as a concept broadly speaking. In this sense, it is the goal to set up the conceptual ground to identify the features of free speech as a principle. In the first part of the chapter, I examine the circumstances and scope of free speech as part of my attempt to understand what type of speech might fall under the free speech principle conceptually. Then in the second part, I indulge in the debate surrounding what it means to claim that free speech is a principle and therefore, the meaning of free speech as both a dependent and an independent principle. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 D. Kabasakal Badamchi, Dimensions of Free Speech, Philosophy and Politics Critical Explorations 19, https://doi.org/10.1007/978-3-030-88319-5_3

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3 Setting the Conceptual Ground

In this chapter and in the book as a whole, the reader will come across with three different ways that I refer to free speech- the concept of free speech, the principle of free speech and the justification of free speech.1 The concept of free speech signifies what counts as speech and what it is for speech to be free. The principle of free speech refers to the principle that individuals ought to have a right to free speech. The justification of free speech addresses what it is that justifies people having free speech or what justifies the principle of free speech. These three meanings of free speech are interconnected and often imply one another. For instance, we assume there is a free speech principle whenever we refer to the justification of free speech. Furthermore, we also take it for granted that free speech as a concept has certain features that qualify it to be called free as we refer to the principle of free speech.

3.1

Conceptual Circumstances of Free Speech

What are the conceptual boundaries of free speech? What type of speech falls under the category of free speech? Perhaps, it is wise to begin by mentioning that by speech, I do not restrict myself to mean merely actual speech, but I consider a rather broad range of expressions such as written expression in newspapers (including online media), books, pictures, graphics, slogans and artistic and literary expressions. As a second disclaimer, I have to stress that I do not mean to consider the substantive borders/scope of free speech in terms of what should fall under the category of free speech or not. In other words, I intend to limit my projection to a merely conceptual scope of free speech in this part of the chapter. I use expression and speech as signifying almost the same meaning as far as the free speech principle is concerned. However, as Schauer warns, the word expression has the connotation of self-expression, which makes us a bit skeptical about its usage (Schauer 1982, 92). Self-expression might be too broad a concept, including many forms that do not aim at communication. However, expressions that are intended to be communicated and thus, other-regarding can be included under the category of free speech. Free speech is the speech to be heard by others and in this sense, it is public and falls under the conceptual category of the free speech principle. Speech is the medium through which we express our opinions and ideas in public, together with others under the conditions of plurality of opinions. If we borrow a word from Arendt, through speech, we express our uniqueness and who we are and there is always the goal to be heard and seen within a community of other beings (Arendt 1958). There is a good thought experiment that explains the significance of the otherregarding and communicative character of free speech mentioned by Alan Haworth. He says:

1

I would like to thank to one of the anonymous reviewers of the manuscript for encouraging me to emphsize this anaytical distinction between the different senses of free speech I refer in the book.

3.2 Free Speech as a Principle

31

Imagine, then, that the ruling junta of some monolithic, one-party, totalitarian state decides to erect ‘free speech booths’ at accessible points throughout the land; at street corners in cities and towns and elsewhere. Suppose that these resemble telephone booths but that, unlike telephone booths, they have no windows. Suppose that they are soundproof, too. The point is that once inside the booth you have complete privacy. Under the system you are at liberty to enter an unoccupied booth whenever you like and express any opinion you want in any tone of voice. You can mutter imprecations or you can scream out loud ‘Down with the dictators!’ Let us suppose that there is even a graffiti wall with pens provided gratis and that—as you leave—this is automatically wiped clean, ready for the next occupant. (Haworth 1998, 11)

Can we argue that in those ‘free speech booths’, we exercise our right to free speech? Certainly not. Expressing ourselves in such booths would serve nothing more than to provide some level of mental and psychological relaxation in isolation. Communication intends to be heard and seen by the others and without the company of others; speech is not communication at all. Arguing otherwise would be saying “you are free to think as long as you do not express your thoughts to others”. That is to say, there is no substantive difference between the free speech booths and unexpressed thoughts. What about the character of communication? Do I refer to an ideal communication situation in the normative sense? I limit my conceptual exploration in this chapter by referring to communication as an almost technical and minimal concept. In other words, communication is considered as an activity (speech in this particular context) that is undertaken to be heard and seen by others. In this manner, it contains a communicated content, communicating agent and the listener/receiver of the communicated content. This allows me to contemplate the conceptual scope of the free speech principle rather than its substantive scope in terms of what type of speech should be considered free speech from a normative point of view. The substantive boundaries of free speech are the topic of the next chapter of this book which focuses on justifications of the free speech principle.

3.2 3.2.1

Free Speech as a Principle Dependent and Independent Principles

There can be two possible ways to consider free speech as a principle: dependent and independent.2 Liberal theories accept freedom of speech as a principle by claiming that it is a universal right of an individual which has utmost significance together with all basic rights and liberties. In most of these theories free speech is justified through the justification of freedom/liberty as a principle. In other words, one has to accept the validity of an argument that claims the significance of freedom in order to accept the significance of free speech. This dependency between the principle of 2

The distinction between dependent and independent principles in this chapter overlaps with the distinction between instances and independent principles introduced by F. Schauer in his book Free Speech: A Philosophical Inquiry (New York: Cambridge University Press, 1982). I explain the features of Schauer’s distinction in detail in Sect. 3.2.2 of this chapter.

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liberty and free speech is inevitable to a certain extent. However, the free speech principle requires an independent argument; an argument that explains the distinct value of free speech as such in order to demand a higher protection. In this chapter, first, I focus on four major justifications, and therefore grounds, for a free speech principle: democracy, autonomy, truth discovery and personal development. I do not analyze these theories in this chapter in detail since my goal is limited to understanding in which way free speech appears as a principle in such theories. In Chap. 4 of this book, I provide a more detailed analysis of each of these theories by particularly noting the differences among various versions of justifications of free speech. Second, I critically examine Friedrich Schauer’s justification of free speech as an independent principle to investigate to what extent his justification of free speech is capable of providing a strong enough grounds for free speech. Then, I aim to state the features of my interpretation of a free speech principle that rests on an independent argument, which is founded on the idea of free speech as constitutive of the principles of equal autonomy and democratic participation. Let me begin by clarifying a few points. From my perspective, first of all, the possibility of an absolutely independent principle is unrealistic given that free speech arguments are almost always justified in relation to principles such as liberty, autonomy, democracy etc. In this sense, we need to be aware that we refer to a relative independence whenever we talk about a free speech principle. For instance, a free speech principle can be a component of an argument for democracy while at the same time it is justified and accepted as distinct from the principle of liberty. As we shall observe in Sect. 3.2. of this chapter, F. Schauer also emphasizes this aspect of the relative independence of political principles. Secondly, I believe a free speech principle justified by way of an argument other than the general principle of liberty is important to assure higher standards of protection for free speech compared to other human activities. As I noted elsewhere, this distinct argument should explain the importance of free speech and why free speech should be protected (Kabasakal Badamchi 2015, 908). And thirdly, the independent argument for free speech has to value free speech on principled grounds- on grounds that do not consider free speech merely as an instrument to reach a higher goal but rather consider it as constitutive of the principle it rests on. Finally, I contend that an independent principle of free speech based on constitutiveness can be validated on a combination of the justifications of equal autonomy and democratic participation which provides a stronger justification for a free speech principle. I shall explain this last point in detail towards the end of the chapter. The argument from discovery of truth, developed by J.S. Mill in On Liberty, is one of the most well-known justifications of a free speech principle. For Mill, any opinion that is silenced may be true and to argue otherwise would be assuming infallibility (Mill 1986, 60). Moreover, even if the silenced opinion is wrong, it might contain a portion of truth, which will help to reach the truth (Mill 1986, 60). As evident, Mill grounds his argument on skepticism by appealing to fallibility and he values discovery of truth as an ultimate goal to be reached. Within this scheme, free speech is significant as a principle as long as discovery of truth is valuable and

3.2 Free Speech as a Principle

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free speech serves the goal of reaching the truth. The problematic part of the argument for our purposes seems to be that the argument about the value of a free speech principle is dependent on the context of discovery of truth. Is free speech not valuable or less valuable in other realms of life where discovery of truth is not the ultimate goal? I think this aspect makes the discovery of truth argument weak as long as it does not provide us any grounds for the particular value of speech as such as an activity. Another theoretical ground that considers free speech as a principle is the argument from personal development. Free speech is necessary and inevitable for persons to develop emotionally, socially and intellectually. In other words, restrictions on speech prevent both the speakers and the listeners from improving their capacities, skills and personalities. I contend that the theory implies the constitutive quality of speech as a communicative and expressive activity in persons’ lives to enable them to develop their personalities. However, this aspect of speech is not argued straightforwardly and therefore, the argument remains weak. In other words, free speech remains as an instrumental aspect of human life without the recognition of its essential and existential importance for personal development. One need to answer what makes speech more important than or at least as important as other goods such as education, health, happiness etc. for personal development if a free speech principle has to be grounded independently. Unlike the above-mentioned justifications, democratic participation and autonomy arguments intend to provide independent grounds for a free speech principle by assigning a constitutive role to speech as such. In the version of democratic participation argument developed by Meiklejohn, free speech is portrayed as a constitutive circumstance of a genuine democratic participation.3 Citizens are required to benefit from a genuine right to free speech since only with the help of this right, they can be fully aware of others’ opinions and they can express their viewpoints freely. Expression of various viewpoints as well as full access to information is one of the essential constitutive circumstances for democratic participation of citizens. Therefore, democratic participation, in the sense of sharing political power, is possible with the fulfillment of the conditions of free speech. In this sense, justification of democratic participation offers an argument that focuses on the relevance and value of free speech as such. On an autonomy view, free speech is an essential condition of the citizens’ use of their rights to autonomous choices of their own. The government should therefore treat individuals as rational and autonomous by letting them access the information and advocacy that might be helpful to a rational, autonomous person making a choice (Greenawalt 1989, 150). Any restriction on free speech that goes against the treatment of individuals as autonomous is unjustifiable. Put in this way, free speech is an inseparable and inevitable- therefore constitutive- component of the exercise of

See Alexander Meiklejohn, “The First Amendment is an Absolute”, The Supreme Court Review (1961):245–66.

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an individual’s right to autonomous decision making and therefore, it has a value on its own as a principle.

3.2.2

Schauer’s Conception of the Free Speech Principle

Friedrich Schauer is a well-known scholar who theorizes to ground free speech as an independent principle. Schauer claims that all the above-mentioned theories including the last two are far from considering free speech as an independent principle because none of them provide a separate argument for why speech is significant in a particular way (Schauer 2015, 135). In other words, on his view, all of these justifications pick one item, namely free speech, among the constituent parts of a larger argument, without explaining what makes that particular item distinctly special. I believe Schauer’s criticism rightly applies to discovery of truth and personal development justifications due to their instrumentalization of free speech at different levels to achieve particular goals. However, as I mentioned above, autonomy and democracy arguments, even though they picture free speech as a component of other rights/values, they endeavor to offer reasons for the particular distinctiveness of free speech. That is to say, speech and its free exercise appear as constitutive requirements of the exercise of autonomy and democratic participation in a manner that enables the very presence of the right to autonomy and democratic participation. In his well-known book Free Speech- A Philosophical Inquiry, Schauer distinguishes between two types of political principles: instances and principles. Instances are hardly principles because they are not justified on their own but are only justified by the arguments supporting the broader principle of which the instances are part (Schauer 1982, 3). On the other hand, principles have their own justification: their acceptance does not depend on the acceptance of a broader more inclusive principle. To illustrate this distinction, he provides an example about killing of animals: Suppose someone opposes killing animals because he believes animals have rights equivalent to those of human beings, at least in terms of rights relating to life and death. Such a person might plausibly oppose any killing of animals, except in cases of self-defence. . .If we were to ask this person whether he objected to hunting as a sport, he would not need and would not use an independent argument against hunting. His comprehensive principle against killing animals includes hunting, and his opposition to hunting is but an instance of his broader objections to any killing of animals. (Schauer 1982, 3–4)

Nevertheless, Schauer continues, there are people who eat meat and wear leather clothes, yet still oppose hunting as a sport. He asserts, these people would need a distinct and more narrower justification, which tells something peculiar to hunting, to be able to oppose hunting (Schauer 1982, 4). In other words, they need an independent argument whose acceptance is not dependent on the acceptance of the broader principle that requires opposition to killing animals for any kind of reason except for self-defense.

3.2 Free Speech as a Principle

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For Schauer, a free speech principle is powerful when it is conceptualized as independent from the general principle of liberty. This means the distinct justification for free speech can offer reasons for the highest protection in the contexts where the principle of liberty is balanced out or overridden by other principles under certain circumstances (Schauer 1982, 9). However, it is also important to note that the independence of the free speech principle from the general principle of liberty does not necessarily require an isolation of the principle from other political and moral principles; it can still be a component of the principle of rationality, democracy and equality (Schauer, 5–6). In an article he published in 2015, Schauer further clarifies why we need to recognize free speech as a separate right and do not stick with the right to liberty alone (Schauer 2015, 119–140). He notes: . . .we can say that both at the level of theory and at the level of concrete rights creation, the right to free speech presupposes a world-whether ideal or actual- in which the liberty of speaking is not encompassed by an already existing right. To the extent that it is so encompassed, a specific right to free speech is superfluous unless it protects something not already otherwise protected. (Schauer 2015, 140)

The right to free speech exists as a right because there is a specific need to protect speech’s free exercise. A general right to liberty, even though it is a foundation of the right to free speech, leaves the realm of speech unprotected.Schauer’s conception of independence requires higher standards of protection for speech than for other activities. Thus, he states: “When there is a Free Speech Principle, a limitation of speech requires a stronger justification, or establishes a higher threshold for limitations of speech than for limitations of other forms of conduct. This is so even if the consequences of the speech are as great as the consequences of other forms of conduct.” (Schauer 1982, 8). Put precisely, the free speech principle requires such a stronger justification, otherwise it would be not possible to refer to the presence of an independent free speech principle. Is it any type of speech that deserves higher protection or are there any conceptual features to free speech? For Schauer, speech has to have specific conceptual qualities to be included in the realm of the free speech principle. The basic feature of speech is its communicative character; containing a communicative intent, communicated message and a recipient of the communication (Schauer 1982, 98). In this way, speech as communication is other- regarding by its very nature and thus, different from free expression. Expression, due to its meaning as self-expression, is not otherregarding in the view of Schauer. That is to say, for Schauer, the word expression is too broad in meaning; implying a universe of intentional actions and inner feelings of a speaker (Schauer 1982, 93). Therefore, speech rather than expression is preferable for delineating a narrower realm of actions that can be immune to some degree from the governmental control. How does Schauer justify free speech? For Schauer, the power of the government to regulate speech should be more limited and that the most plausible justification for a free speech principle seems to be the one that argues from a government incompetence. Thus, he contends: “Freedom of speech is based in large part on a distrust of

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the ability of government to make the necessary distinctions, a distrust of governmental determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense.” (Schauer 1982, 86). Given the above analysis, I agree with Schauer that free speech should be regarded as an independent principle even though absolute independence is impossible. In this sense, free speech requires a specific justification for what makes speech important and distinct. However, I do not think it is a strong ground for free speech to argue merely from a negative justification. As Alexander and Horton emphasized, the argument from government incompetence is a negative theory because it aims to justify the free speech principle not on the basis of the positive good of free speech or the positive harm of its denial but rather on the inability of government officials to calculate properly the costs and benefits of the suppressed speech (Alexander and Horton 1984, 1328). This alone is a weak justification as long as it does not affirm the positive relevance of free speech in personal, social and political life. In other words, considering speech as a positive good does not make the free speech principle a dependent principle per se. In a way, as soon as one considers speech as an otherregarding communication, they are in the territory of defining speech as a positive good. Speech as communication is a constitutive feature of our humanly existence, recalling Aristotle and Arendt, because we live in a world of human togetherness and in non-isolation. Schauer appeals to a distrust of government in its capacity of determining the costs and benefits of the suppressed speech when justifying his negative theory of free speech. As he claims, he does not aim to develop a detailed general theory of free speech, yet he still needs to clarify the reasons behind such skepticism regarding government’s incapacity of defining the boundaries of free speech. Is the reason something to do with a general skepticism about the possibility of determining the truth and the infallibility of any agent on the meaning of truth? Is it something to do with a belief that governments and power holders manipulate and use their power to define political concepts in line with their interests? As long as Schauer does not provide satisfactory answers to these questions, the foundation of skepticism towards government action on free speech remains ambiguous in his theory. The double-grounded theory that I aim to develop in this book considers free speech as an independent principle as well as contending that complete and absolute independence is not possible. Like most principles of political theory, the free speech principle is dependent on other concepts but my contention is that we should be able to justify the free speech principle independently by providing a separate argument for the significance and value of free speech as such. According to the doublegrounded principled approach, the principles of autonomy and political participation are components of a free speech principle as long as they provide a separate argument for the value of free speech as such. This is not to instrumentalize free speech but rather to embrace the constitutive significance of free speech for the participation and deliberation of autonomous beings in a democratic polity. Without the conditions of free speech, a genuine circumstance for democratic deliberation of autonomous citizens is not possible at all. Speech is the medium, in its general form,

3.3 Conclusion

37

through which persons communicate and state their opinions. It is through speech that deliberation and the expression of the autonomous capacity of persons are possible. Moreover, the free speech principle, in its connection with autonomy and political participation, is also a component of the general principle of liberty. It can be in harmony with both positive and negative liberty. Negative liberty allows us to think that state authority should not prevent autonomous persons from expressing their opinions freely. Furthermore, from a positive liberty perspective, it can be argued that state authority should provide the circumstances of free speech for a genuine political participation of persons in a democratic polity. However, neither of these arguments provides a separate argument for the value of free speech as such. Speech and its free exercise is a constitutive component of the exercise of autonomy and political participation and only by way of recognizing this aspect of free speech, one might be able to think of free speech as an independent principle.

3.3

Conclusion

In this chapter, I outlined the conceptual framework of the book by focusing on free speech as a concept and a principle. First, I discussed what type of speech falls under the category of the free speech principle and claimed that free speech is communicative, public and other-regarding. Then, I concentrated on what it means for free speech to be a principle and what features a free speech principle can and should have. To do this, I benefited from F. Schauer’s distinction between dependent and independent principles; dependent principles (or instances as Schauer calls them) are justified by appealing to the broader argument that they rest on whereas independent principles require distinct arguments that are separate from the acceptance of the broader principle. Given this distinction, I analyzed four major justifications to see to what extent they can provide independent arguments for the free speech principle and argued that only equal autonomy and democratic participation arguments are capable of justifying a free speech principle on independent grounds. This is because, unlike the discovery of truth and personal development arguments which consider free speech on instrumental grounds, both the autonomy and democratic participation arguments regard free speech as constitutive of their foundations. In Sect. 3.2.2 of the chapter, I devoted a section to F. Schaeur’s justification of free speech as an independent principle. I shared the convictions of Schauer on the relevance and necessity of regarding free speech as an independent principle since this provides free speech a priority as a principle in the context of conflict of principles and balance of values. Nevertheless, I disagreed with Schauer’s justification of free speech based on government incompetence. I claimed that appealing to government incompetence as the only justification is not a powerful way of arguing for a free speech principle because negative justification on its own does not affirm the positive value of free speech as such.

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References Alexander, Lawrence, and Paul Horton. 1984. Review Essay: The Impossibility of a Free Speech Principle. Northwestern University Law Review 78 (5): 1319–1357. Arendt, Hannah. 1958. The Human Condition. Chicago: Chicago University Press. Greenawalt, Kent. 1989. Free Speech Justifications. Columbia Law Review 89 (1): 119–155. Haworth, Alan. 1998. Free Speech. London/New York: Routledge. Kabasakal Badamchi, Devrim. 2015. Justifications of Freedom of Expression: Towards a DoubleGrounded Non-consequentialist Approach. Philosophy and Social Criticism 41 (9): 907–927. Mill, John Stuart. 1986. On Liberty. New York: Prometheus Books. Schauer, Friedrich. 1982. Free Speech: A Philosophical Inquiry. New York: Cambridge University Press. ———. 2015. Free Speech on Tuesdays. Law and Philosophy 34: 119–140.

Chapter 4

How to Justify Free Speech

Abstract This chapter is concerned with why and how free speech should be justified. It critically analyzes four major justifications for free speech and argues for a conception of free speech that combines two justifications- equal autonomy and democratic participation- on a principled ground as a strong foundation for free speech. First, I claim that the discovery of truth justification for free speech relies on uncertain empirical claims that assume free speech leads to truth and social progress and is far from providing a strong defense of speech as intrinsically valuable. Second, I contend, like the discovery of truth argument, the personal development argument relies on uncertain empirical validation and falls short of demonstrating that free speech is an intrinsic value but rather assigns significance to free speech as a means for the well-being of persons through personal fulfillment. Third, I point out that the equal autonomy argument is ambiguous on the status of different categories of speech since it applies to a whole universe of speech and the democratic participation argument is vague on the status of undemocratic speech in terms of whether undemocratic speech should be counted as political speech. I contend that the proposed framework of this book, namely the double-grounded principled approach, provides a stronger justification for free speech when compared with the single grounded justifications, by combining and integrating the relevant aspects of the equal autonomy and democratic participation arguments in its scope. Unlike the equal autonomy argument alone, it endows political speech the highest protection and moreover, it is clearer on the status of undemocratic speech by providing a space for it within the realm of free speech as long as it contributes to public deliberation and does not constitute hate speech. Keywords Free speech · Justifications of free speech · Discovery of truth · Personal development · The first amendment · Equal autonomy · Double-grounded principled approach

This chapter is a developed and revised version of the discussion on justifications of free speech in an earlier article I published: Devrim Kabasakal Badamchi, “Justifications of Freedom of Expression: Towards Double-grounded Non-consequentialist Approach”, Philosophy and Social Criticism 41, No. 9 (2015). © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. Kabasakal Badamchi, Dimensions of Free Speech, Philosophy and Politics Critical Explorations 19, https://doi.org/10.1007/978-3-030-88319-5_4

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This section considers the questions of why and how free speech should be justified. Therefore, I analyze the possible justifications for free speech from a critical perspective that addresses the weak and strong aspects of each reason for free speech. I focus on the discovery of truth, personal development, equal autonomy and democratic participation as four major justifications for free speech. Then, I develop my argument for free speech—the double-grounded principled approach— which is a revised articulation of the arguments of equal autonomy and democratic participation.

4.1

Discovery of Truth as a Justification for Free Speech

The discovery of truth as a justification for free speech was first elaborated in detail by J. Stuart Mill in On Liberty. The main argument of Mill for free speech is that diversity of opinions is an essential requirement for truth to come to the light, which is significant for human progress. Mill has an argument for free speech on the basis of equal autonomy too but I will focus on this in Sect. 4.3. later. Here, I limit my examination to Mill’s ‘discovery of truth argument’ in this section. Mill’s argument for free speech as a requirement of the discovery of truth is based on an epistemological skepticism regarding the capacity of individuals and political authority to know the truth. In this sense, he argues: 1. Any opinion that is compelled to silence may be true and to deny this would be assuming infallibility. 2. Even if the silenced opinion is an error, it may contain a portion of truth and since the general opinion on any object may rarely or never involve the whole truth, it is only by the articulation of various opinions, we may reach the truth (Mill 1986, 60). Mill thinks that refusing to hear an opinion is to assume infallibility, which is an impossible human condition. No authority is infallible and therefore, no authority has the right to silence an opinion on the basis of its assumed falsehood (Mill 1986, 24). Moreover, Mill considers the diversity of opinions as a requirement for reaching the truth since each opinion might reflect a portion of truth or contribute to the achievement of truth in some way. The skepticism regarding the knowledge of the truth has a basis in Mill’s belief in human progress too. A diversity of opinions enables some doctrines to reach the level of being uncontested and over time, the more humankind improves, the more we have opinions that are not doubted anymore. The well-being of humankind will also be measured by the number and gravity of the uncontested truths we have reached (Mill 1986, 51). In other words, for Mill, a diversity of opinions is both a requirement of the discovery of truth and human progress at the same time.

4.1 Discovery of Truth as a Justification for Free Speech

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Mill’s justification for free speech as a requirement of the discovery of truth and social progress is relevant as far as it emphasizes the impossibility of censorship on the falsehood of certain opinions as opposed to others since no authority is infallible to know fully if an opinion is false. Nevertheless, as argued by some thinkers, his claim that truth discovery and social progress are the inevitable consequences of free speech seems to be problematic due to its reliance on empirical validation. That is to say, it is a contested fact that free speech leads to truth discovery and social progress in society is a universal rule. Haworth’s expression ‘liberty of the seminar room’ explains the dimensions of Mill’s association between truth and free speech well enough (Kabasakal Badamchi 2015, 911). By seminar room, Haworth means a group of earnest and rational individuals whose purpose is to find the truth (Haworth 1998, 27). He stipulates that in a seminar room, individuals express their opinions in turn for consideration by others and arguments are elaborated with the hope of making some advancement towards the truth. All opinions, even the ones that appear wild and extravagant, are treated with equal seriousness (ibid.). Here, we might conjecture that the seminar room represents scientific communities, universities, colleges and research institutes. In other words, ideally, these communities are founded on such a motivation to find the truth and free speech is a requirement for them to reach the truth, which serves human progress too. But to what extent we can generalize this motivation to society at large? Can we claim that discovering the truth is a general motivation in society? Is free speech a requirement to the discovery of truth in society at large? Can we easily claim that free expression and discussion of ideas lead to the discovery of truth and individual and social growth? (Kabasakal Badamchi 2015, 912). Mill’s argument on free speech is founded on an empirical assumption that free speech leads to the discovery of truth and social progress. However, it faces problems against the test of historical examples. For example, Eric Barendt reminds us that the Nazi regime came to power in 1933 during the Weimer Republic, in a period of relatively free political discourse in 1920s (Barendt 2007, 11). This is not to argue that truths are likely to be discovered in non-free speech contexts or that we do not need free speech for the discovery of truth at all (Kabasakal Badamchi 2015, 912). This is to say that Mill’s empirical association of free speech as a requirement for the discovery of truth and social progress cannot be viewed as a universal fact and that in certain contexts some speech has to be regulated to reach truth and social progress. Despite these challenges, however, I contend that Mill’s skepticism with respect to truth is a valuable aspect of his argument for free speech. Mill’s assumption that there can be a portion of truth even in a false opinion implies that there is not a selfevident objective truth that is to be discovered. This skeptical argument on truth finds a justified ground in our contemporary hyper-pluralistic1 world which is marked by

1

Hyper-pluralism is a concept introduced by Alessandro Ferrara to describe the highly pluralistic nature of contemporary multicultural societies. See his Democratic Horizon (New York: Cambridge University Press, 2014):88–109.

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the presence of a plurality of truths/opinions etc. which we think are morally equal. For example, the truth of a Catholic believer would be different than the truth of a secular Marxist and Mill’s argument about the impossibility of knowing the truth supports this plurality of opinions. A parallel version of the discovery of truth argument can be found in the justification of free speech which is based on the ‘marketplace of ideas’. According to this argument, opinions and ideas should be left unregulated since the best opinion/s will eventually survive and outlive the false ones. The origins of the metaphor of marketplace of ideas dates back to John Milton’s argument that false and true beliefs must be left uncensored since eventually God will reveal what truth is. Even though, Milton favors a marketplace of ideas, he does so due to his belief that it is only God who knows the truth.2 The metaphor was used in a secular sense by Justice Holmes in 1919 concerning the case Abrams v. United States: “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”3 The argument of ‘marketplace of ideas’ rests on the assumption that markets are free and they produce truth, therefore speech should be free and this will lead to the discovery of truth. As Joo argues, this analogy is a faulty one because it takes for granted the role and function of the markets: markets are neither unregulated nor do they produce truth (Joo 2014, 386–387). Markets’ being free is an idealized notion of laissez faire liberalism, regardless of the mechanisms with respect to how markets actually do work. Nevertheless, I think, faultier than this is the association between production of truth and the markets. The function of economic markets is not the search for truth but profit maximization. In this sense, markets deal with the preferences of persons but not the epistemological or moral quality of opinions at all. I do not mean to develop an argument for or against speech regulation here since this is a substantive task that needs to be dealt with separately. Actually, I discussed whether absolute free speech is possible in Chap. 2 in detail. Yet, I believe the analogy between markets and conditions for free speech is a misleading and faulty one. Neither Mill’s discovery of truth argument nor the ‘marketplace of ideas’ argument can provide a principled ground for free speech. In other words, both of them rely on uncertain empirical claims that assume free speech leads to truth and social 2

See John Milton, Areopagitica: Speech to the Parliament of England for the Liberty of Unlicensed Printing (Cambridge University Press, 1918), with a commentary by Sir Richard C. Jebb and Supplementary Material (downloaded from Online Library of Liberty). 3 See https://supreme.justia.com/cases/federal/us/250/616/ (Accessed 26 February 2020) for the full judgement on the case Abrams v. United States, 250 U.S. 616 (1919) and dissenting judgment of Justice Holmes. During the First World War, Jacob Abrams, together with four other immigrants in New York, distributed two leaflets which criticized US intervention in the Russian Civil War. The leaflets asked the workers to go on a general strike and advocated for the cessation of the war weapons to be used against Russia. The immigrants were convicted under the amendments of the Espionage Act to 20 years imprisonment. Justice Holmes dissented from the conviction by appealing to an argument that justifies free speech through marketplace of ideas and the First Amendment’s protection of free speech rights.

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progress. Mill’s skepticism offers a valid justificatory ground with its appeal to the fallibility of human judgment but it is far from claiming a ground for free speech that delineates speech as intrinsically valuable.

4.2

Personal Development as a Justification for Free Speech

One of the justifications of free speech is founded on the idea that free speech is a requirement of one’s personal development. As Barendt puts it, “restrictions on what we are allowed to say and write, or (on some formulations of the theory) to hear and read, inhibit our personality and its growth” (Barendt 2007, 15). In other words, an essential connection is assumed to exist between personal identity and its expression, which is a human need for personal growth. Even though it might be sound to believe that free speech is essential for personal growth, formulated as above, the personal development argument is incomplete and problematic for two reasons. First, it is ambiguous how personal development can be defined and second, proving the necessary connection between personal development and free speech proves to be empirically problematic. Do we mean by personal development a good life defined objectively such as having access to shelter, healthcare, food, meaningful social relations etc. or something completely subjective such as a life that is worth living? Let’s assume that personal growth implies reaching an objective level of welfare and happiness, even then, how we prove that free speech is a required step to achieve a good life is ambiguous. In some contexts—in an authoritarian regime for instance—free speech might cost a person’s freedom due to persecution and imprisonment, which leads to the deprivation of the person’s basic human needs. Or, in some cultures and social circles, there can be values other than free speech, such as happiness, fame and power that can arguably contribute to one’s personal development better than free speech. Therefore, it is empirically uncertain that free speech is an essential requirement of one’s personal growth. Joseph Raz develops a complementary version of the personal development argument for free speech which is more immune to the criticisms stated above. He provides a clearer conception of personal development by recognizing the diversity of lifestyles which enables him to answer the empirical ambiguity criticism to a certain extent through addressing free speech as a public good. Raz states that “an important case for the importance of freedom of expression arises out of the fact that public portrayal and expression of forms of life validate the styles of life portrayed, and that censoring expression normally expresses authoritative condemnation not merely of the views or opinions censored but of the whole style of life of which they are part of.” (Raz 1991, 310). For Raz, free speech is a way to tolerate and recognize various different ways of life affirmed by different persons in a society. According to Raz, free speech validates ways of life in two ways: First, ways of life are validated through the free portrayal and expression of ways of life and second, when a particular expression is censored, censorship expresses not only

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disapproval of a particular expression but also disapproves of the whole way of life of which it is a part of (Raz 1991, 312). In other words, censorship ignores and disregards the whole lifestyle of the persons who identify with the censored lifestyle. In some way, censorship of a portrayal and expression of a lifestyle denies an important aspect of the personal identity of the individuals who adhere to the censored lifestyle. Both ways of validating the lifestyles are founded on the idea that free speech is a public good. Free speech is not only the right of the person who has an interest in free expression but at the same time, the right of other persons who have an interest in hearing this expression (Raz 1991, 314). In this sense, censorship violates the rights of individuals to benefit from a public culture where various different ways of life are validated freely. In a public culture where free speech is a public good, individuals have a chance to express and validate their ways of living as part of their personal growth and fulfillment as well as hearing and evaluating other ways of living, which can have a positive impact on their personal development. Raz’s argument for personal development as a ground for free speech is powerful due to his incorporation of the idea of free speech as a public good into his theory. Free speech as a public good serves the personal fulfillment of individuals through expression and validation of various styles of life. Furthermore, the idea of free speech as a public good supports cultural diversity and pluralism since every lifestyle is worth validating. However, his argument on free speech does not identify the differences between categories of speech. In other words, he does not answer whether all kinds of speech are valuable for personal development and if not, what are the categories of speech that can be regulated (Kabasakal Badamchi 2015, 914). He clearly states that he is not against state supporting certain ways of life as better ways of life since he is not a great fan of neutral state (Raz 1991, 318). Nevertheless, he is silent on the issue of regulating speech such as hate speech. Personal development as a justification for free speech, like the discovery of truth argument, is in need of empirical validation and we do not know if this validation is possible or not. Free speech as a requirement for personal development can be challenged in a pluralistic context of lifestyles as well. It is a general fact that individuals are born and raised in certain cultures but not all cultures value free speech as a constitutive aspect of personal fulfillment (Kabasakal Badamchi 2015, 914). That is, individuals born in some cultures that do not value free speech, might think they develop well enough and happy. Raz answers this challenge by appealing to the democratic public culture of validation of lifestyles but his theory falls short of identifying the boundaries of protected speech. Furthermore, the personal development argument, even in the Razian sense, falls short of valuing free speech as an intrinsic value but assigns significance to free speech as a means for the well-being of persons through personal fulfillment.

4.3 Equal Autonomy as a Justification for Free Speech

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Equal Autonomy as a Justification for Free Speech

The equal autonomy argument, unlike discovery of truth and personal development, recognizes free speech on non-consequentialist principled grounds. On an equal autonomy view, persons, as equally rational and autonomous, have the right to make choices based on their conceptions of good. In line with this, the state should not prevent persons from exercising their autonomy by censoring speech that is essential for them to exercise their right to autonomous choices. In other words, as Greenawalt emphasizes, the government should treat persons as equally rational and autonomous by providing them all the information and advocacy that might be helpful for any rational person to make a choice (Greenawalt 1989, 150). In this sense, free speech is an inevitably essential component of acting autonomously: it is not possible to exercise the right to autonomous choices without the right to free speech and vice versa. That is to say, both rights are essential requirements of each other and none of them can be merely treated as a means to achieve the other. I examined John Stuart Mill’s theory before in terms of his justification for free speech as necessary to the discovery of truth and claimed that due to its reliance on uncertain empirical validation, his justification for free speech on the grounds of the discovery of truth is far from providing a strong principled ground for free speech. However, there is another dimension of his theory of free speech, which is often neglected; that of equal autonomy. Mill develops an argument based on a listenerbased theory of autonomy in On Liberty, which provides a stronger principled ground for free speech when compared with the discovery of truth argument (Kabasakal Badamchi 2015, 917). Mill’s argument of equal autonomy points out that being justified in one’s opinion/criticism is a requirement of the right of individuals to make autonomous choices. It is because only through hearing and viewing all kinds of reasons and opinions, persons can make rationally autonomous choices. That is to say, any opinion which deserves to be named as ‘rational’, has to be contested and criticized by counter opinions and individuals need the plurality of opinions and criticisms to be able to develop rational opinions that are reflective of their choices. Thus, Mill claims: He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion. The rational position for him would be suspension of judgment, and unless he contents himself with that, he is either led by authority, or adopts, like the generality of the world, the side to which he feels most inclination. (Mill 1986, 44)

In order for opinions to reflect the independent autonomous choices of individuals, they have to be obtained rationally and critically in a circumstance of plurality of opinions. That is to say, free speech is the right of the listener as well as the speaker since individuals have the right to be criticized and challenged in their opinions for making autonomous choices.

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The right to be justified in one’s opinion is independent from the quality of the opinion itself, whether it reflects the whole truth or not. Mill says; even if the received opinion reflects the whole truth, it is in need of contestation and criticism because the held opinion would be no more than a prejudice or dogma without the rational justification (Mill 1986, 60–1). He adds that the meaning of the opinion will be lost without the challenge of counter opinions and criticisms since dogmas will prevent the growth of real convictions too (Ibid.) In other words, rational criticism and plurality of opinions are guarantees of the true opinions to prevail as well as opinions that are reflective of autonomous choices of individuals. As Daniel Jacobson also emphasizes, Mill’s argument on free speech is not exclusively consequentialist and concerns justification rather than truth (Jacobson 2007, 89). Being justified in one’s opinion is a requirement of the equal autonomy of individuals to make choices of their own. Censorship prevents individuals from listening, reading and examining alternative views and reflecting critically on their own choices. When political authority censors an opinion, it does not respect the autonomous capacity of individuals to make their own choices because it refrains from providing the information and advocacy relevant for them to make their autonomous choices. Ronald Dworkin is one of the thinkers who bases his argument for free speech on equal autonomy. He notes: People have the right not to suffer disadvantage in the distribution of social goods and opportunities, including disadvantage in the liberties permitted to them by the criminal law, just on the ground that their officials or fellow-citizens think that their opinions about the right way for them to lead their own lives are ignorable or wrong. I shall call this (putative) right the right to moral independence, . . . (194)

Each and every person has a right to moral independence which allows them to choose and live autonomously. The right to moral independence requires the state to refrain from censorship on the basis of the belief that a particular opinion is wrong or ignorable since censorship violates the persons’ right to have equal access to liberties regardless of whether their opinions are wrong. Dworkin’s right to moral independence as a ground for free speech is in line with his theory of rights as trumps. He states in Rights as Trumps, “rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole.” (Dworkin 1984, 153). In other words, common goals set for the whole society cannot justify the violation of rights even if these goals are objectively good. In this sense, he points out, when someone has a right to independence, state officials are wrong in violating this right due to the reason that they believe the society would be better off with the censorship (Dworkin 1981, 200). In the article I published in 2015, I argued that Dworkin’s theory is more speaker based than listener based on his treatment of the interests of the persons in relation to

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moral independence.4 However, I think I misjudged his theory of free speech. Dworkin’s emphasis on having equal access to liberties applies to both speakers and listeners since it is significant for persons to exercise their autonomous capacity regardless of the content of what is heard is wrong or ignorable. I agree with Yong that the justificatory foundation of the right to moral independence lies in the principle of equality (Yong 2011, 392–3). Dworkin bases his argument for a right to moral independence on respect for the equal moral status of all individuals as a foundational principle of political morality. Therefore, violation of the right to moral independence of persons in the name of common wellbeing is unacceptable since every person has the entitlement to the same equal respect and concern as others (Dworkin 1981, 211). Thomas Scanlon develops a theory of free speech based on a principle of autonomy which he later revises on the basis of the judgment that his initial theory was faulty in certain respects. Initially, he bases his argument on what he calls the Millian principle, which is “a consequence of the view that the powers of a state are limited to those that citizens could recognize while still regarding themselves as equal, autonomous, rational agents.” (Scanlon 1972, 215). Thus, the Millian principle points out that autonomous citizens cannot be expected to believe and obey actions or decrees of the state without appealing to their own independent rational deliberation (Scanlon 1972, 217). That is to say, it is a requirement of the equal autonomy of individuals to limit the legitimate state action to the ones that are acceptable by individuals themselves in their capacity of reasoning as rational and autonomous beings. In other words, as a requirement of equal autonomy, governments are not entitled to censor opinions on the grounds that the audience will develop harmful and false beliefs or that it may commit harmful acts as a result of these harmful and false beliefs (Scanlon 1972, 213). In a more recent article in 2003, Scanlon criticizes the Millian principle he developed in 1972. Here, he asserts that the Millian principle, which he configured as a general principle in the past, cannot be applied to all categories of speech with the same force and that he was mistaken to believe that it would have this general scope (Scanlon 2003, 95–6). In this sense, he admits, his Millian principle, which was inspired by Meiklejohn’s First Amendment theory, generalized the protections peculiar to political speech to all types of speech by considering mainly the interests of the participants and audience (Scanlon 2003, 98). In other words, the central audience interests were taken as constraints for justification of authority as a requirement of the principle of autonomy and for him, this was mistaken. In the 2003 article, Scanlon, upon a thorough revision of his earlier views on justifying free speech, suggests a ground for free speech which recognizes the relevance of different interests—such as the interests of the participants, audience and bystanders—as well as different categories of speech. Such a ground, for Scanlon, allows us to consider that, in some circumstances, freedom of expression

See “Justifications of Freedom of Expression: Towards a Double- grounded Non-Consequentialist Approach”, Philosophy and Social Criticism, page 919.

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considerations can be outweighed by competing interests in the manner that “clear and present danger” and “pure balancing” theories of the First Amendment would allow (Scanlon 2003, 98). Moreover, it provides us an opportunity to take account of the variations in audience interests in varying circumstances since the actual exercise of autonomy as the central audience interest will not be considered as a general constraint to justify government action. But what does Scanlon’s revision of his views tell us about his take on autonomy as a justification for free speech? Does he give up on autonomy altogether as a principle for justifying free speech? I think that is not the case here. Scanlon’s goal is not to disqualify autonomy as a principle altogether as a reason for free speech. He intends to limit and qualify the scope of the principle: in some circumstances, a principle of autonomy justifies free speech and condemns censorship as an unjustified action of the state. Nevertheless, autonomy as a constraint for the justification of authority is not plausible when it is in the form of a general principle that is applicable to all types of speech and circumstances of interests. In line with the above, in a more recent article, Scanlon suggests to distinguish between different values that inform different versions of autonomy. He says: It is one thing to say that citizens have an important interest in being able to hear what others have to say in order to make up their minds about topics which are important to them (not just about how to vote). It is another to say that they are responsible for the opinions that they form in a sense that if exposure to expression would lead to their having opinions that put them in a worse position to decide what to think, this could not be taken as a ground for restricting that expression. (Scanlon 2011, 547)

Scanlon claims that he does not reject any of those values of autonomy; rather he wants to point out that the recognition of the presence of different values of autonomy is significant for free speech considerations (Scanlon 2011, 547). For him, the distinction between different values of autonomy might be helpful in the cases where the interests of the speakers and audiences are in tension as Robert Post mentions.5 For instance, in some situations the interest of the speakers to have access to the public forum to advocate their beliefs and speak freely (autonomy) might clash with the interest of the audiences being autonomous in the sense of being in a good position to think and being free from the noise and cacophony in the system of free expression (Scanlon 2011, 548). As I mentioned in my earlier article in 2015, the most acute criticism against the equal autonomy argument as a ground for free speech is that it fails to distinguish between different categories of speech and therefore, it applies to all types of speech (Kabasakal Badamchi 2015, 919). This criticism holds true for Mill’s being justified in one’s criticism, Dworkin’s right to moral independence and Scanlon’s earlier argument for autonomy as a constraint on justification. As observed in detail above, Scanlon rectifies this fault in his theory and points out the significance of

Here, Scanlon refers to the article by Robert Post, “Participatory Democracy and Free Speech”, Va. L. Rev. 97, 477(2011):488

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differentiating between various categories of speech and its relevance for the justification of free speech. Moreover, unlike Mill and Dworkin, Scanlon’s theory recognizes the plurality of values of autonomy that can be grounds for free speech. However, his view on whether and how to provide higher standard of protection to political speech is vague. In his 2003 article, he states that political speech should be protected since the governments are unreliable and partisan regarding political matters (Scanlon 2003, 98). In a more recent article, he contends that, the interests of the speakers and audiences in speaking and hearing political speech are important and government regulation of political speech would damage these interests (Scanlon 2011, 323). He does not specify why the interests of speakers and hearers are important in the case of political speech, which would allow him to assign an essential value to democratic participation and therefore, designate a special prior status to political speech. He refrains from going down this route of justification for free speech but it is the only way we can assure the full protection of political speech. One of the popular criticisms against the autonomy argument is that in real life, the actions and choices of individuals hardly reflect their self-mastery. Sunstein claims that there are real life obstacles in front of exercising full autonomy such as lack of education, information and opportunities (Sunstein 1995a, b, 143). These criticisms are important in addressing the difficulties in front of exercising the capacity of autonomy in the full sense. Nevertheless, they do not pose valid challenges to the argument since autonomy is a moral capacity inherent in individuals who are equal and rational. In this sense, equal autonomy provides a principled justification for free speech, if not a complete justification (Kabasakal Badamchi 2015, 920).

4.4

Democratic Participation as a Justification for Free Speech

The democracy argument for free speech mainly claims that free speech is essential for the functioning and development of democracy. In line with this claim, different versions of the argument all assign a prior significance and highest level of protection for political speech. Citizens need to be informed about various political opinions and matters and at the same time, be able to speak freely on every political matter in order to fully participate in the democratic decision making. In other words, censorship violates citizen’s right to participate in political activities which is a foundational element of democracy. In this sense, the democracy argument is founded on a principled justification for free speech since it considers citizens’ political participation as a right, and violation of this right by way of censorship is considered morally wrong. Moreover, it recognizes free speech as a constitutive element of democratic participation rather than as a means to achieve it and in this sense, it is a non-consequentialist justification as well (Kabasakal Badamchi 2015,

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914). The democratic participation argument is inspired by different interpretations of the First Amendment of the US Constitution. Below, I constrain my analysis with the theories of Alexander Meiklejohn and Cass Sunstein as thinkers of the democratic participation argument, but this is not to suggest that these two thinkers are the only representatives of the First Amendment theory of free speech. It is because we may view their theories as representative of the major principles of the First Amendment theory, in parallel with other thinkers such as Robert Post, Jim Weinstein and Robert Bork.6 Alexander Meiklejohn develops his theory of free speech on the foundation of democratic participation of citizens, which is an essential element of democratic activity. In his well-known essay The First Amendment is Absolute, he points out that it is significant for democratic regimes to establish public forums for citizens to exercise political participation through deliberating freely. In his view, these public forums, which will be established in every village and town, should carry a genuine aim to enable citizens to actively debate political matters. Thus, he says: I am not thinking of such lunatic-fringe activities as those in Hyde Park in London. I am thinking of a self-governing body politic, whose freedom of individual expression should be cultivated, not merely because it serves to prevent outbursts of violence which would result from suppression, but for the positive purpose of bringing every citizen into active and intelligent sharing in the government of his country. (Meiklejohn 1961, 260–1)

As observed above, for Meiklejohn, self-governing bodies which are entitled to decision making are the places where citizens can cultivate their democratic capacities by way of free speech and where they can actively participate in sharing the government of their countries. In other words, free speech is a constitutive component of deliberative participatory activities of citizens. Meiklejohn thinks that political speech is the type of speech that truly falls under the First Amendment protection. Political speech refers to the types of speech that are related to the issue of governing such as elections, policies of government, structure of the Constitution and legislation on various topics. In this sense, political speech is a public speech which constitutes an indispensable component of political participation. To demonstrate the particular significance of political speech, Meiklejohn provides the example of private and public defamation. He notes, in the case of private defamation, where one person does harm to another by word or pen, the First Amendment does not protect this speech (Meiklejohn 1961, 259). Nevertheless, he continues, if the speech is made for demonstrating that a candidate is unfit for a governmental position, this speech is protected by the First Amendment. Here, the speech is considered as an act of political participation just like the speech that disapproves of government policies or the structure of the Constitution See Robert Post, “Participatory Democracy and Free Speech”, VA. L. REV. 97, 477, (2011):482; Robert C. Post, “The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell”, HARV. L. REV. 103, 601, 670 (1990), James Weinstein, “Participatory Democracy as the Central Value of American Free Speech Doctrine”, VA. L. REV. 97 (2011): 491, 493–97, Robert H. Bork, “Neutral Principles and Some First Amendment Problems”, IND. L.J. 47, 1 (1971):20–21.

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(Meiklejohn 1961, 259). In other words, for Meiklejohn, political issues are public issues which are the subjects of citizens’ judgment and therefore, public political speech is different from private speech in its contribution to the democratic participation of citizens. On Meiklejohn’s view, the scope of the protection of the First Amendment is defined by the scope of the political speech. This might raise concerns regarding the status of the non-political speech: if and to what extent literary and artistic, commercial and sexually explicit material should be protected. Unlike Barendt, who claims confidently that there is no space for the inclusion of non-political speech under the protection of the First Amendment in Meiklejohn’s theory (Barendt 2007, 19), I think that Meiklejohn’s theory can accommodate the inclusion of some forms of non-political speech as protected speech. For instance, he claims that the First Amendment protects obscenity in arts and literature since arts and literature have ‘social significance’ which he has called a ‘governing significance’ (Meiklejohn 1961, 262). Moreover, he adds that the State does not have any entitlement to decide what is good and what is bad because it is the citizens who decide what to write, read and see (Meiklejohn 1961, 262). Therefore, Meiklejohn’s theory of free speech does not call for the censorship of non-political speech just because it is non-political. For him, some speech, even though it is non-political, can have social significance and might be protected. Meiklejohn intends to prevent government censorship on the basis of good and bad art but the protection that he assigns to art and literature cannot be held valid for commercial speech, pornographic speech and hate speech. Another criticism of Meiklejohn’s theory of free speech might concern whether undemocratic speech that aims to overthrow democracy is included as protected political speech. It is evident that Meiklejohn’s conception of free speech is concerned with holding the government accountable of its actions by way of democratic participation and deliberation of citizens. In this manner, Meiklejohn points out that criticism, disapproval and condemnation of government policies and the structure of the Constitution as a right of citizens to participate democratically in the sharing of government. I think his theory has the potential to even cover speech such as communist or socialist speech that aims to overthrow democracy (liberal democracy) but this must be argued more firmly (Kabasakal Badamchi 2015, 215). Here, I agree with Barendt (2007, 22) that we need a more general theory of free speech to protect undemocratic speech rather than relying on democratic participation alone. The equal autonomy argument provides such a justification since it applies the equal autonomy principle to all types of speech as a general principle. Cass Sunstein, in a parallel manner to Meiklejohn, develops a theory of free speech which is founded on the democratic participation of citizens. Thus, he underlines that political deliberation and free speech are essential elements of democratic politics. To illustrate the nature of his conception of politics, he refers to Madison: Madison did place a high premium on political (not economic) equality and on the deliberative functions of democracy. He understood the free speech principle of the American Constitution, for which he, above all, was responsible, in the light of these commitments. It

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4 How to Justify Free Speech therefore seems reasonable to describe the Madisonian conception as one that associates free speech with his distinctive understanding of politics. (Sunstein 1995a, xvii)

Sunstein calls a Madisonian understanding of politics; a perception which places greater value on deliberation, and therefore free speech, as the main foundation of political activity. Deliberation is only possible with the exercise of free speech by the citizens who are the sovereign in a democratic polity. Like Meiklejohn, Sunstein attributes a higher value to political speech by developing what he calls a two tier First Amendment theory of free speech. On a two-tier view of free speech, political speech receives higher standards of protection compared to non-political speech. He notes that “I mean to treat speech as political when it is both intended and received as a contribution to public deliberation about some issue.” (Sunstein 1995a, 130).7 But who determines whether a particular speech is political or not? To qualify his position, he adds that the political character of a speech is independent of the judgment of the writer or artist and that it is enough if a few people recognize the intent of the speech as political through making reasonable inferences from the speech (Sunstein 1995a, 131). In other words, a majority opinion is not needed for a speech to be counted as political since few people’s reasonable judgment will be enough. Moreover, like Meiklejohn, he considers artistic and literary expression as political speech too due to their social importance. Political speech aims to contribute to public deliberation, which is essential for the functioning and deepening of democracy. That is why it receives the highest level of protection on Sunstein’s view. He expresses that the harms that would justify the regulation of other speech such as private libel, pornography, false commercial speech and criminal solicitation are insufficient to permit government regulation at the level of political speech (Sunstein 1995a, 128). The unique feature of political speech as a contribution to public deliberation justifies the highest protection it receives since political deliberation is a core foundational element of democracy. Building upon what has been said, can we argue that Sunstein’s second tier, i.e. nonpolitical speech is subjected to too much regulation and censorship? Sunstein answers this with a straightforward ‘no’ by claiming that his theory leaves much room for challenging regulatory efforts of governments on non-political speech (Sunstein 1995a, 155). He lists what he calls impermissible government justifications for any kind of speech: In general, government cannot regulate speech of any sort on the basis of (1) its own disagreement with the ideas that have been expressed, (2) its perception of the government’s (as opposed to the public’s) self-interest, (3) its fear that people will be persuaded or influenced by ideas, (4) its desire to ensure that people are not offended by the ideas that speech contains. (Sunstein 1995a, 155)

As seen above, the regulation of non-political speech is also controlled by limiting the content-based and unjustified restrictions of the government. These reasons determine the limits of regulation of any type of speech, be it political or not and constrain the scope of government censorship in a reasonable manner. In line with 7

Italic emphasis added.

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the impermissible government restrictions, for instance, he claims that the government should not regulate sexually explicit speech because it is ‘offensive’ but it may, through narrowly drawn restrictions, regulate pornographic material which combines sex with violence (Sunstein 1995b, 58). The democratic participation argument connects free speech and democratic governance on a fundamental level. This is a strong aspect of the theory since it addresses the constitutive necessity of free speech for democracy as a matter of principle. In this sense, free speech is not an external means to achieve democratic governance but it is an essential inseparable element of democratic activity of the citizens. In other words, it recognizes that democratic authority is founded on citizens’ active participation in the sharing of political power through deliberative forums. Here, I agree with Bhagwat (2016, 1097–1124) that we need to refer to the five freedoms—speech, press, assembly, association and petition—that are addressed by the First Amendment as complementary democratic rights in pointing out the value of free speech for democracy. This amounts to interpreting the free speech clause in relation to other democratic activities without which free speech rights would be incomplete. In a way, on a democratic participation argument, this relational interpretation is necessary but also inevitable. One of the challenges that the democratic participation argument faces today concerns the status of fake political speech. Especially with the utilization of various social media platforms in election campaigns, fake news and misinformation have become part of the election processes globally. The impact of fake news on elections was much debated, especially after Donald Trump won the US Presidential elections in November 2016. The public debate has addressed Trump’s usage of fake news and misinformation during and after the election to rule the country. Nevertheless, fake political speech has especially proved to be an important topic in the aftermath of the 2020 Presidential election. D. Trump called out to his supporters by claiming that he won the elections that he actually lost to Biden, which led to a riot and an attack to the Congress Building. After the riot has been controlled, Trump is suspended from twitter. These events have intensified the requirement to debate the limits of free speech in relation to fake speech. Given the relevance of the issue for the political participation and free speech, it is necessary to ask the question how fake/untrue speech can be addressed within the theory of democratic participation?8 In order to tackle this issue, first, I believe one needs to differentiate between two concepts; truth and knowledge. The search for objective truth in the sense of an ideological, religious or philosophical doctrine cannot be the goal of a political authority. That is to say, we live in pluralistic societies where every citizen has

8

Cass Sunstein has published a recent book that specifically addresses the issue of fake news and information. In the book, he accepts that fake news and information are part of our social life and we have reasons not to rely on governments to decide what is fake and what is not. Still, he stresses that specific falsehoods, such as the ones that genuinely endanger health, safety, and the capacity of the public to govern itself, should nevertheless be regulated. For Sunstein’s detailed analysis of on the issue, see his Liars: Falsehoods and Free Speech in an Age of Deception (Oxford: Oxford University Press, 2021).

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their own truth claims which they believe is a universal and justified way of living. The idea of a universal objective truth imposed by a political authority is intolerant and authoritarian in a hyperpluralistic world. However, knowledge that intends to properly represent factual reality or withstand being tested by empirical reality; can be a demand in politics since genuine public deliberation requires a certain level of moral disposition to contribute to the public political debate on the issues that are debated. On the above note, it is also important to distinguish between deliberately false/ fake information/claims and defeasible/false information/claims. Fake news or declarations—deliberately providing false information to manipulate the public opinion—hardly qualifies as political speech in the true sense of the term. In other words, the democratic participation argument recognizes speech as political as long as it aims to contribute to public political deliberation. Nevertheless, we need to recognize the fact that false information/news are part of public political life too, for many reasons that are not in our control such as not having access to the relevant resources to form proper judgments and being manipulated etc. It is important to limit the restrictions on speech to deliberately fake information/news and not define the boundaries of acceptable speech too narrowly both for the sake of political activity and free speech. So far so good. But can we easily identify which expressions are political and which are not? According to Sunstein’s view, a speech is counted as political as long as few people consider it as political regardless of the intention of the author. I think this proposal might be problematic under the contemporary conditions of the internet age. The speed and convenience of posting information in the cyber world makes the quick spreading of fake news very probable. Moreover, fake information can quickly become popular due to the misjudgment by the citizens since it is difficult to detect the original source/author of the information in most situations. In other words, it is difficult to determine if an expression is based on fake information or not and in certain situations regulation of fake information especially on internet seems to be really difficult, if not impossible.9 The issue of fake news as a challenge to the democratic participation argument is a symptomatic expression of the need to take the latest developments in the information and communication technologies into account when referring to democratic participation as a ground for free speech. Put firmly, we need to consider the circumstances of the contemporary internet age when considering the requirements of free speech principle. Scholars such as Eugene Volokh, Kathleen Sullivan, Jack Balkin, Cass Sunstein and Tim Wu had addressed the changing circumstances of the cyberspace and their possible implications for the free speech issues.10 For instance,

9

For an argument that aims to develop a space for the regulation of fake speech within the First Amendment Theory, see Hundley, A. C., “Fake news and the first amendment: How false political speech kills the marketplace of ideas”, Tulane Law Review, 92(2) (2017): 497–518. 10 Eugene Volokh, “Cheap Speech and What It Will Do”, Yale L.J. 104 (1995): 1808–33, Kathleen M. Sullivan, “First Amendment Intermediaries in the Age of Cyberspace”, UCLA L. Rev. 45, 1653

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according to Tim Wu, the assumptions that the First Amendment found on have become obsolete, one way or another due to the rise in importance of attention markets and changes in the information technologies (Wu 2018, 554). The first assumption of the First Amendment was information scarcity: in the 1920s, few people were expected to speak freely and only a small number of people could compete in the marketplace of ideas through political speech. In line with this, secondly, listeners were assumed to have abundant time and attention to be influenced by the political speech of the speakers and thirdly, government was viewed as the main threat to the free speech through criminal law or other practices such as banning publications etc. (Wu 2018, 554). Wu notes that all the three assumptions of the First Amendment have been transformed thanks to the domination and popularity of the internet in our lives. It has become easier to be an online speaker through the blogs and platforms like Facebook or Twitter. Moreover, an attention industry that aims to capture the attention and time of the listener developed as well as individually targeted filtering practices on web have become common practices (Wu 2018, 554–7). And lastly, he reckons, the threat to free political speech can no longer be limited to government censorship but various governmental and non-governmental channels now pose threats to free speech through practices such as trolling, distribution of fake news and defamation (Wu 2018, 560–5).11 The diagnosis made by Wu makes sense given the changing character of the scope and nature of communication in the internet age. All in all, one might conjecture that democratic participation theory has the potential to tackle with the threats posed to free speech by the internet age. I believe a lot still depends on to distinguish meticulously between what is political speech and what is not. The fact that the methods of controlling speech have changed immensely and that new indirect forms of censorship have become popular should not blur our vision and discourage us in our endeavor to protect political speech. An important amount of the censorship and control of speech are still exercised by governments even in the contemporary internet age and it is significant to protect speech from the arbitrary and unjustified censorship of the state. However, it stands as a challenge to deal with the non-governmental controlling of speech in the online world too. The democratic participation argument should endeavor to determine which speech aims to contribute to public deliberation and protect it even though it might be difficult considering the challenges of the cyberage.

(1998), Jack M. Balkin, “Old School/New-School Speech Regulation”, Harv. L. Rev. 127, 2296 (2014); Cass Sunstein, Republic.com (Princeton University Press, 2007). 11 For a detailed account of the various categories of contemporary speech control, online silencing and censorship, see Zeynep Tufekci, Twitter and Teargas- The Power and Fragility of Networked Protest (Yale University Press, 2017). Tufekci discusses the new forms of manipulating, attacking, censoring and trolling of speech in the cyberworld by way of focusing on the social protests such as Istanbul Gezi, Tahrir Square and the Occupy.

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4 How to Justify Free Speech

The Double-Grounded Principled Approach to Free Speech

As analyzed, the discovery of truth and personal development proved to be weaker justifications to ground free speech due to their reliance on uncertain empirical evidence. Moreover, the reasons they provide are based on different consequentialist approaches that treat free speech as a valuable instrument to achieve a higher goal. This is not to suggest that these justifications are not moral, yet they are far from justifying free speech on a strong principled ground; i.e. a ground that considers free speech as a value on its own, without a requirement of instrumentalizing it. I claim that a strong principled ground for free speech can be established through a combination of the justifications of equal autonomy and democratic participation. Both equal autonomy and democratic participation intend to suggest principled moral grounds for free speech that do not necessarily instrumentalize the value of free speech as such. Equal autonomy recognizes that free speech is a right which is an inevitable component of the exercise of autonomy. In a parallel way, the democratic participation argument is based on the idea that free speech is an integral and constitutive aspect of the exercise of democratic deliberation and activity of citizens. Below, I look for the possible ways to articulate these two justifications on a revised critical basis, through addressing their weak and strong aspects. I intend to build up a principled ground for free speech, which I call the double-grounded principled approach to free speech. I do not claim that this combination offers a complete theory that is capable of solving all the free speech issues but I believe that it is capable of providing a better ground to claim the value of free speech as such. The approach I propose aims to overcome certain problems of free speech we encounter either with the equal autonomy argument or with the democratic participation argument when they are considered alone. First, the double-grounded principled approach provides a sensible solution to the problem of what type of speech shall be protected and why. In other words, it provides a justifiable ground for what type of limits are acceptable for free speech by way of assigning special status to political speech as such. Furthermore, it overcomes the ambiguity of the status of undemocratic speech by providing protection to undemocratic speech that is not hate speech—speech which rejects the equal autonomy of persons and does not aim to contribute to public deliberation—and that aspires persuasion and reason giving in the public realm. First, the double-grounded principled approach is founded on the equal autonomy principle as one of the two major principles of its constitution. That is to say, the principles of free speech and autonomy require and complement each other. “Here, autonomy is understood as an essential element of our human capacity to choose the way of life that we want to live and decide on matters of life on the basis of our choices, without being subject to any intervention or imposition of another way of life on us” (Kabasakal Badamchi 2015, 920). It is a requirement of my autonomous capacity to express freely and hear others freely and in a parallel manner, I cannot choose and decide freely without being able to speak and hear others freely.

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The double-grounded principled approach is pluralist in recognizing that there can be different values of autonomy and embraces Mill’s justification in one’s criticism as well as Dworkin’s right to moral independence. Moreover, it agrees with Scanlon that one single value of autonomy cannot be applied as a general principle to all categories of speech.12 In line with this, it notes that we need to take into consideration that there can be different interests of the speakers, listeners and audience in different circumstances as well. In other words, we might need to balance different interests in some circumstances rather than treating the interests of the speaker as the only interests that are in need of protection. Second, the double-grounded principled approach is founded on democratic participation as the second component of its constitution. In this sense, free speech is recognized as an essential aspect of public political deliberation: without free speech, there will be no circumstance for deliberation. In other words, like Meiklejohn and Sunstein, the double-grounded principled approach notes that free speech provides the conditions for the articulation of various interests and opinions of citizens, information on various public issues and also candidates for public offices and criticism of government activities and policies. In line with this, it is emphasized that the exercise of free speech through deliberation is the core of democratic activity since it facilitates the conditions of sharing government and political power. The double-grounded principled approach considers equal autonomy and democratic participation as two complementary principles. Equal autonomy and democratic participation provide good principled justifications for free speech separately. However, I argue that a stronger principled justification for free speech can be articulated through a constructive and critical dialogue between the two grounds for justifications (Kabasakal Badamchi 2015, 921). Put precisely, I intend to address the relevant aspects as well as shortcomings of each ground in justifying free speech and work to remedy the shortcomings of each in relation to the other. As explained above in Sect. 4.3, one of the acute shortcomings of the equal autonomy principle is that it does not firmly distinguish between different categories of speech with respect to the application of the equal autonomy principle (Kabasakal Badamchi 2015, 921). Put precisely, in the more generic sense of the argument, equal autonomy as a general principle is assumed to apply to a whole universe of various types of speech. But this proves that the equal autonomy argument is incomplete on its own in facing various types of speech such as hate speech, violent pornography, deceitful commercial speech etc. Some might claim that the harm principle can help to determine what categories of speech can be regulated within the doctrine of the equal autonomy argument. However, given the ambiguity as to what precisely counts as harm, it seems unlikely

12 This point was not recognized boldly in the previous article I wrote in 2015 in Philosophy and Social Criticism even though the idea of recognizing various different values of autonomy was there at an undeveloped level. This was partly due to the reason that I tend to read Scanlon on the basis of his 1972 article rather than his later writings on the subject.

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that the harm principle on its own is capable of providing a solid basis to distinguish between protected speech and speech that can be regulated (Kabasakal Badamchi 2015, 921). Some others might suggest that offence should be the reason for regulation of speech. But offense seems to suggest a wider scope for regulation, which can be problematic on the point of free speech rights as well. Furthermore, like harm, offence can be interpreted in many different ways, which might lead to the censorship or regulation of some perfectly tolerable speech (Kabasakal Badamchi 2015, 921) This is not to suggest that appealing to the principle of harm, if not offence, cannot be a basis for regulation at all. I want to underline that they are not adequate grounds for assigning different categories of speech different levels of protection. The double-grounded principled approach, as mentioned before, recognizes that different values of autonomy can be applied in various contexts and thus, accepts that an application of one general principle of autonomy across a universe of speech is not plausible. Moreover, it also embraces a categorization that endows political speech with the highest protection. Like Meiklejohn and Sunstein, the doublegrounded principled approach categorizes speech into two tiers: political and non-political and intends to protect political speech which aims to contribute to public deliberation. It is because free speech is a constitutive element of public deliberation, which is the core of democratic activity and due to this quality; free speech should receive the highest protection. Like Sunstein, the double-grounded principled approach defines political speech as speech that intends to contribute to public deliberation and considers the reasonable judgment of few listeners as a criterion for a speech to be qualified as political speech. Furthermore, it notes that fake news, trolling speech and other types of manipulative speech of the cyberworld cannot be counted as political speech since they do not intend to contribute to democratic deliberation. However, it also recognizes that it might be difficult to determine the genuine political quality of a speech in the contemporary cyberworld due to the circumstances where speech can be used to manipulate, harass, defame, attack and deceive anonymously. One of the challenges to be addressed from a double-grounded principled theory is the status of non-political speech such as commercial speech, pornography, hate speech and defamation etc. They are not political and therefore, they can be subject to regulation. Yet, this does not necessarily mean they have to be censored outright; it is that the standard of protection for them is lower than the standard of protection for political speech. As a general principle of equal autonomy, I contend that censorship should not be justified on the basis that the censored opinion is wrong, ignorable, unacceptable or misleading from the state/government’s point of view. In other words, a state cannot appeal to censorship by claiming that it disapproves of the censored opinion and that it should provide solid grounds for the regulation of the speech in question by weighing the value of the interests of speakers, listeners and audience in different circumstances. Upon what has been said above, I believe the status of hate speech should be evaluated firmly. To begin with, it is important to note that the double-grounded principled approach considers it as a fact that speech might hurt, injure, harass and

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offend. Perhaps hate speech is one of the acute representations of how speech can be hurtful. Below, I will attempt to define some conceptual boundaries for what might be called hate speech, but regardless of the challenges of the definition, I want to express that hate speech is an illustration of the interrelation between power and speech. In most situations, hate speech is exercised by the powerful to impose a hateful opinion and create an environment of fear particularly for those who it targets. However, this does not mean that only powerful exercises hate speech can be counted as such; there can be situations where less powerful groups, individuals and institutions resort to hate speech for various reasons. My conception of hate speech is mostly inspired by Bhikhu Parekh’s and Susan Brison’s definitions of hate speech. According to Parekh, hate speech “implies hostility, rejection, a wish to harm or destroy, a desire to get the target group out of one’s way, a silent or vocal and a passive or active declaration of war against it.” (Parekh 2006, 214). Evidently, hate speech cannot be reduced to dislike, disapproval and disrespect although it involves such feelings in its essence. In other words, hate speech is based on stronger feelings such as hate and hostility. We can list four major features of hate speech. First, hate speech targets an individual or a group of individuals on the basis of certain characteristics such as race, ethnicity, sexual orientation and any other characteristic that could be the target of hate (Brison 1998, 313). Even if the target is one single individual in particular, the hostility is directed in relation to a characteristic of a group to which the individual is assumed to belong. Secondly, hate speech ascribes to the target a set of constitutive qualities that are considered highly undesirable (Parekh 2006, 214). Since these qualities are presented as almost unchangeable and inherent, the bearers of these qualities are demonized and humiliated. Thirdly, as a direct result of the demonization, the target groups are placed outside the normal social relations (Parekh 2006, 214). Exclusion from normal social relations of the society entails exclusion from political relations too. Since the targets are represented as beings that cannot share the rules of living together and cooperate in sharing the burdens of society, they are viewed as if they do not deserve to participate in political deliberation. Finally, as Susan Brison mentions, hate speech includes vilification either in the form of face to face libel or in the form of creating a hostile environment or performing group libel (Brison 1998, 313). In fact, vilification itself on the basis of hate in relation to a group identity might be considered as a form of war as long as it operates through a hostile language that designates certain individuals and groups as enemies that can be legitimately discriminated against. That is to say, hate speech operates in general with a major binary opposition between friend and enemy distinction in the Schmittian sense.13 The target group is portrayed as an existential

13

For a detailed description of the friend and enemy distinction and how it reflects in the meaning of the political in Schmitt’s theory, see his The Concept of the Political, trans. by George Schwab, The University of Chicago Press.

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enemy is distinctly different from other persons who are acceptable and reliable members of the society. The above characteristics make it impossible for hate speech to be compatible with the two principles of the double-grounded principled approach. Firstly, on a double-grounded principled approach, it is not possible to call hate speech protected political speech. That is to say, the motivation for hate speech is far from contributing to public deliberation but quite contrarily, to create a hostile environment for the persons of the targeted group. Furthermore, an expression of hate speech hardly constitutes a political claim/opinion that is acceptable by the other members of the political community. Secondly, hate speech does not recognize the equal autonomy of members of its targeted group. Racist, xenophobic and sexist speech that expresses feelings of hate and hostility aims to exclude persons of certain groups from public deliberation by declaring them lacking in rational autonomy and the qualities to contribute to the public forum (Kabasakal Badamchi 2015, 923). Therefore, the double-grounded principled approach considers hate speech as a speech that can be regulated, just like commercial speech and pornography. The limits and types of regulation may vary according to the circumstances; i.e. to what extent the speech poses an imminent threat and danger to the targets and the interests of the audience. Lastly, I would like to point out a weak aspect of the democratic participation argument on its own—namely undemocratic speech—which is rectified through the equal autonomy principle on a double-grounded principled approach. In Sect. 4.4 above, I mentioned that Meiklejohn’s theory allows room for the criticism and disapproval of government policies and the structure of the Constitution. In a parallel manner, we might claim that on a Sunsteinian view, criticism and disapproval of government policies are included as protected political speech too. However, we need a more robust ground to claim that we have good reasons to include undemocratic speech; speech that aims to overthrow democracy under the umbrella of protected political speech. I claim that we can find this ground in an equal autonomy justification. The equal autonomy principle considers that all persons have the capacity to choose and live on the basis of their preferred conception of good. This is a requirement and consequence of their autonomous capacity as human beings. In line with this, they should be able express their opinions freely on the basis of their chosen viewpoints/ideologies, be they democratic or not. Government censorship violates the principle of equal autonomy by preventing persons from forming their free and informed choices and also expressing those choices. In other words, principally, persons who hold undemocratic views should be able to express those opinions as a requirement and a consequence of their equal autonomy just as persons who hold democratic views. Given the above, the double-grounded principled approach includes undemocratic speech in the first tier of political speech that needs to be protected (Kabasakal Badamchi 2015, 923). Undemocratic speech may refer to the disapproval and criticism of government policies, the structure of the Constitution and also speech that aims to overthrow a democratic regime. In other words, undemocratic [antidemocratic] speech may be made with reference to each of these three things listed.

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This definition is quite broad, yet with one significant qualification; undemocratic speech cannot be hate speech. Put precisely, undemocratic speech should aim to contribute to public deliberation through persuasion and reason-giving to others. This means it should respect the equal and free status of all persons in a democratic debate. For instance, racist, fascist, or sexist speech, as long as they do not consider others as free and equal, are not counted as protected political speech on a doublegrounded principled approach. That is to say, undemocratic speech, so far as it is hate speech, can be regulated since it will fall under the category of a second-tier type of speech which does not receive the highest standard of protection. It might be rightly argued that it is difficult to think of an instance of undemocratic speech which is not hateful. In that case, why does the double-grounded principled approach not argue for limiting all types of undemocratic speech? It is true that most sexist speech—and almost all racist speech—are hateful. Nevertheless, I believe there can be types of speech with different motivations, which might sometimes contain elements of prejudice—but which are not hateful—and intend to contribute to public deliberation. One of the examples of such a speech can be a certain type of communist/socialist speech which criticizes the liberal democratic government and aims to overthrow liberal democracy, yet still intends to contribute to public political deliberation. In this sense, socialist speech recognizes the equal autonomy of persons in deliberation and its goal is to address the injustice and inequality etc. in the capitalist system. The double-grounded principled approach, as outline above, does not claim to answer all the puzzling questions posed by the free speech debate. Nor does it assert that it solves all the free speech issues in the contemporary societies. However, I contend that it provides a stronger justification for free speech when compared with single grounded justifications, by combining and integrating the relevant aspects of equal autonomy and democratic participation arguments in its scope. In other words, the double-grounded principled approach demonstrates a capacity to deal with free speech issues more thoroughly and satisfactorily as compared with single-grounded justifications.

4.6

Conclusion

In this chapter, I describe in detail the structure and content of the theoretical framework—namely the double-grounded principled approach—proposed in this book. First, I critically examined four major justifications of free speech: discovery of truth, personal development, equal autonomy, and democratic participation. I demonstrated that the justifications of discovery of truth and personal development fail in providing strong principled justifications for free speech because they rely heavily on uncertain empirical validation. I contended that it is not possible to empirically demonstrate that free speech leads to the discovery of truth as a universal principle. Moreover, validation of the claim that free speech is a requirement of

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personal development proves to be problematic too due to a similar empirical uncertainty and ambiguity regarding how personal development can be defined. I claimed that the justifications of equal autonomy and democratic participation can provide principled justifications for free speech, yet they also suffer from certain weaknesses when considered on their own. This is because, I underlined, the equal autonomy principle applies to a whole universe of speech and fails to distinguish between protected and non-protected speech. Furthermore, I noted, the democratic participation argument is ambiguous on the status of undemocratic speech, whether it is to be protected or not. Upon the analysis of the four major justifications of free speech, I claimed, a revised combination of the justifications of equal autonomy and democratic participation is superior in providing a strong principled justification for free speech when compared to single-grounded justifications. In line with this, I outlined and described in detail how the double-grounded principled approach overcomes the abovementioned problems relating to the issue of free speech. I demonstrated, the double-grounded principled approach prioritizes political speech that aims to contribute to public deliberation and therefore, assigns a higher protection to political speech than non-political speech. Furthermore, I contended, the double-grounded principled approach considers undemocratic speech which aims to contribute to public deliberation as protected political speech as long as it is not hate speech.

References Abrams v. United States, 250 U.S. 616. 1919. Accessible via https://supreme.justia.com/cases/ federal/us/250/616/. Balkin, Jack M. 2014. Old-School/New-School Speech Regulation. 127 Harvard Law Review 127: 2296. Barendt, Eric. 2007. Freedom of Speech. Oxford: Oxford University Press. Accessible via Oxford Scholarship Online, @: www.oxfordscholarship.com. Bhagwat, Ashutosh. 2016. The Democratic First Amendment. Northwestern University Law Review 110 (5): 1097–1124. Bork, Robert H. 1971. Neutral Principles and Some First Amendment Problems. 47 The Indiana Law Journal 1: 20–21. Brison, Susan. 1998. The Autonomy Defense of Free Speech. Ethics 108: 312–339. Dworkin, Ronald. 1981. Is There a Right to Pornography? Oxford Journal of Legal Studies 1 (2): 177–212. ———. 1984. Rights as Trumps. In Theories of Rights, ed. Jeremy Waldron. Oxford: Oxford University Press. Ferrara, Alessandro. 2014. Democratic Horizon, 88–109. New York: Cambridge University Press. Greenawalt, Kent. 1989. Free Speech Justifications. Columbia Law Review 89 (1): 119–155. Haworth, Alan. 1998. Free Speech. London/New York: Routledge. Hundley, A.C. 2017. Fake News and the First Amendment: How False Political Speech Kills the Marketplace of Ideas. Tulane Law Review 92 (2): 497–518. Jacobson, Daniel. 2007. Why Freedom of Speech Includes Hate Speech. In New Waves in Applied Ethics, ed. Jesper Ryberg, Thomas S. Petersen, and Clark Wolf, 73–793. New York: Palgrave Macmillan.

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Joo, Thomas W. 2014, December. The Worst Test of Truth: The Marketplace of Ideas as Faulty Metaphor, Tulane. Law Review 89 (2): 383–434. Kabasakal Badamchi, Devrim. 2015. Justifications of Freedom of Expression: Towards DoubleGrounded Non-consequentialist Approach. Philosophy and Social Criticism 41 (9). https://doi. org/10.1177/0191453714564457. Meiklejohn, Alexander. 1961. The First Amendment Is an Absolute. The Supreme Court Review 1961: 245–266. Mill, John Stuart. 1986. On Liberty. New York: Prometheus Books. Milton, John. 1918. Areopagitica: Speech to the Parliament of England for the Liberty of Unlicensed Printing. Cambridge University Press, with a Commentary by Sir Richard C. Jebb and Supplementary Material, Accessible vian Online Library of Liberty. Parekh, Bhikhu. 2005–2006. Hate Speech—Is There a Case for Banning?. Public Policy Research 12 (December–February): 213–223. Post, Robert C. 1990. The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell. 103 The Harvard Law Review 601: 670. ———. 2011. Participatory Democracy and Free Speech. 97 The Virginia Law Review 477: 482. Raz, Joseph. 1991. Free Expression and Personal Identification. Oxford Journal of Legal Studies 11 (3): 303–324. Scanlon, Thomas. 1972. A Theory of Freedom of Speech. Philosophy and Public Affairs 1 (2): 204–226. ———. 2003. Freedom of Speech and Categories of Expression. In The Difficulty of Tolerance: Essays in Political Philosophy, ed. Thomas Scanlon, 84–113. Cambridge: Cambridge University Press. ———. 2011. Comments on Baker’s Autonomy and Free Speech. Constitutional Commentary 27: 319. Schmitt, Carl. 1996. The Concept of the Political. Trans. George Schwab. The University of Chicago Press. Sullivan, Kethleen M. 1998. First Amendment Intermediaries in the Age of Cyberspace. The UCLA Law Review 1653: 45. Sunstein, Cass R. 1995a. Democracy and the Problem of Free Speech. New York: Free Press. ———. 1995b. Democracy and the Problem of Free Speech. Publishing Research Quarterly (Winter): 58–72. Sunstein, Cass. 2007. Republic.com. Princeton University Press. ———. 2021. Liars: Falsehoods and Free Speech in an Age of Deception. Oxford: Oxford University Press. Tufekci, Zeynep. 2017. Twitter and Teargas—The Power and Fragility of Networked Protest. Yale University Press. Volokh, Eugene. 1995. Cheap Speech and What It Will Do. The Yale Law Journal 104: 1808–1833. Weinstein, James. 2011. Participatory Democracy as the Central Value of American Free Speech Doctrine. 97 The Virginia Law Review 97 (491): 493–497. Wu, Tim. 2018. Is the First Amendment Obsolete? Michigan Law Review 117: 547. Yong, Caleb. 2011. Does Freedom of Speech Include Hate Speech? Res Publica 17: 385–403.

Chapter 5

Academic Freedom and Free Speech

Abstract This chapter deals with the question of how academic freedom can be justified and also protected in the contemporary world. First, I analyze two conceptions of academic freedom: institutional autonomy and intellectual and professional autonomy. I claim that institutional autonomy is a limited way to conceptualize academic freedom because there is no guarantee that institutions always favor freedom of intellectuals. In line with this, I argue that academic freedom as intellectual and professional autonomy should be the prior, if not the only, conception of academic freedom. Second, I examine critically different justifications of academic freedom that provide us with reasons to attach high protection to academic freedom as a particular right. I contend that the justification of the university as a realm of discovery of truth and independent knowledge production has to be complemented with the justifications of the university as a realm of democratic free debate and the autonomy of academics to speak freely. This is because, the discovery of truth argument alone does not require us to accept any moral principle other than skepticism about our own beliefs, which is not a strong ground for free speech on its own. Third, I argue that equal autonomy provides a good reason for academic freedom by emphasizing the rights of academics to speak in line with what they believe is true and only in this way, can they contribute to the democratic debate in academia. This line of reasoning endorses the value of the search for truth and knowledge on non-instrumental grounds too. Furthermore, I emphasize that academic speech might aim to contribute to democratic deliberation but it would be odd to expect all academic speech to be political in order to be protected. Lastly, I identify the neoliberal transformation of higher education as a force that works against academic freedom in the UK and authoritarianism as an obstacle in the way of the idea and practice of academia as a place of free and democratic debate in Turkey. Keywords Free speech · Academic freedom · Intellectual freedom · Council of Higher Education (YOK) · Academic freedom in the UK · Academic freedom in Turkey

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 D. Kabasakal Badamchi, Dimensions of Free Speech, Philosophy and Politics Critical Explorations 19, https://doi.org/10.1007/978-3-030-88319-5_5

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Academic freedom is a topic whose scope cannot be restricted with the realm of individual free speech theories. On the one hand, it is a type of free speech which can be justified from the general reasons for free speech and on the other hand, as some might argue, it has a particular importance of its own since it is a freedom that applies to a specific category of people; scholars and researchers; who are entitled to almost unlimited free speech rights. This chapter has two goals. First, I intend to analyze to what extent and how we can justify academic freedom through general free speech theories and how academic freedom can be saved. This contemplation provides us the ground to test whether the double-grounded principled approach to free speech, which I have attempted to develop in this book, can justify academic freedom and serve its survival better than the other approaches to free speech. Secondly, I aim to reflect on the actual situation of academic freedom in the contemporary world by referring to certain practices in United Kingdom and Turkey separately. I claim that neoliberalism (in the case of the UK) and authoritarianism (in the case of Turkey) have both destructive impacts on academic freedom. However, I must admit that a categorical comparison between the two countries is beyond the scope of this chapter. Moreover, I do not claim to do an analysis of the inevitable link between neoliberalism and authoritarianism with respect to academic freedom either. Instead, in this chapter, I consider UK and Turkey as two individual examples to reflect on how theories of free speech, including the double-grounded principled approach, can guide us for saving academic freedom in contemporary age.

5.1

Conceptions of Academic Freedom

Academic freedom is a complicated idea which crosscuts boundaries with the general free speech theories. As Eric Barendt rightly draws our attention, it is not helpful to intend to come up with even a provisional definition in couple of sentences, let alone one single definition of academic freedom (Barendt 2010, 17). Therefore in the remaining part of the chapter, I lay out certain possible conceptions of academic freedom that are inspired by and rest on our common sense understanding of freedom in academia. Then, by focusing on possible justifications of academic freedom, I intend to reason how and to what extent the double- grounded principled justification for free speech that I develop in this book can help us to have a conception of academic freedom that is capable of surviving in the face of the challenges of the neoliberal age that we live in.

5.1.1

Academic Freedom as Institutional Autonomy

Institutional autonomy as a reason for academic freedom refers to two potentially conflicting dimensions of autonomy. Firstly, institutional autonomy might be

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understood as administrative autonomy of the academic institutions and secondly, it points out the rights of academics to self-rule or participate in the government of the academic institutions. The first conception of institutional autonomy only refers to the non-intervention of the state without any necessary signification of how academic institutions should be governed. The second conception of institutional autonomy specifies both non-intervention and the right to govern of the scholars themselves. For this reason, I believe that when we debate about institutional autonomy, we should particularly refer to the right of the academics to govern or participation in the government of the academic institutions in order to prevent misunderstandings and potential conflicts in what we mean. Mere administrative autonomy does not guarantee academic freedom on its own as long as academic institutions are governed mostly by managerial mentality by professional administrators. Perhaps it is sensible to start with stating that we can only talk about institutional autonomy in different degrees and dimensions. For instance, in the UK, according to the Higher Education Act 2004, higher institutions of education are free to “determine the contents of the particular courses and how they are taught, and to determine admissions criteria and their application. . . .UK Universities are not free, for example, to set their own fees or disregard directions from the Higher Education Funding Councils without jeopardizing their funding.” (Barendt 2010, 27). From this, we understand that even though complete non-intervention of the state is not possible, there are certain academic decisions that must be made freely by the universities in order to be claimed as institutionally autonomous. These decisions are important in terms of defining the function and nature of higher education such as decisions regarding teaching and research as well as administrative issues regarding how to allocate resources of the institution etc. But it seems there is an inevitable financial dependency on funding institutions; be it in the form of government or private funding. Let’s go back to the point I made before concerning the limited scope of institutional autonomy to serve academic freedom. When considered without any connection to the right of the academics to participate in administration, institutional autonomy might conflict with academic freedom. For instance, a university might decide to close a philosophy department and require its faculty to teach basic philosophy courses in other relevant departments. If those decisions are questioned and criticized by professors due their violation of academic freedom, they could be defended by referring to the argument that university has the autonomy to decide which subjects will be taught and how they will be taught and managed (Barendt 2010, 30). Manifestly and ironically, the argument of institutional autonomy might undermine the goal of academic freedom rather than supporting it.1

1

Benjamin Ginsberg concentrates on how institutional academic autonomy in US was developed by the federal courts “holding that the First Amendment limits state interference with the decisions made by college administrators.” (The Fall of the Faculty (Oxford University Press, 2011), p. 134.) He states that in the view of the courts, administrative decision making deserves special constitutional protection. However, he mentions, “the irony of this position is that it is often the administration that seeks to stifle the ideas and speech of the faculty. Hence institutional academic freedom can stand in the way of real academic freedom”. (p. 136)

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Institutional autonomy as the right of the academics to govern and participate in the government of the university is based on the assumption that the academic interests will be served better the more academic staff are represented in the governing bodies of universities. In other words, the professional administrators and businessmen in the governing bodies won’t prioritize academic freedom over other values such as efficiency and profit. There is a sense in which the argument is sensible and convincing as long as we accept that academic freedom is the highest academic interest of all scholars at all times and in this sense, it is stronger than the mere institutional autonomy argument. There is also an emphasis on the meaning of the university; an institution whose governance and teaching mission are the objects of interference by the teachers rather than powers outside the university (Said 2005, 31). However, it might be claimed that this argument is also weak against the claims of individual rights to academic freedom when a conflict arises between the university administration and a professor or a lecturer. That is to say, there is no guarantee that the university administration- even with a high representation of academics- will favor academic freedom of the individual scholar over institutional interest. This means institutional autonomy, even with reference to the right to govern of the academics, is limited in its scope to protect academic freedom.

5.1.2

Academic Freedom as Intellectual and Professional Autonomy

This definition of academic freedom is based on the idea that scholars, researchers, teachers have an individual right to express and disseminate their views freely. This means that academic staff is entitled to teach, research, publish and speak autonomously as they see fit to their conceptions of facts and truths, without being intervened by other authorities. When put this way, it is a truly individualistic perspective which rests on the universal capacity of each individual to choose and act in this world without any external hindrance to their own will. Therefore, it is justified by free speech as an individual right to autonomous choice. Secondly, it rests on the belief that universities are places where appeals to truths and opinions must be discussed freely due to the professional characteristic of these institutions which aim to discover truth and welcome plurality and diversity. Barendt states that the above-mentioned meaning has been the major dominant discourse in the UK in terms of what is understood by academic freedom. In the Education Reform Act 1988 that in effect abolished tenure, a provision was added to safeguard academic freedom. It obliges commissioners, in preparing new model statutes for universities, to consider the need to guarantee that academic staff have

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the freedom, within the law, to question the received wisdom and offer new and controversial opinions and ideas without risking their jobs and privileges at their institutions (Barendt 2010, 23). He adds that a similar perspective has been taken in US: “the 1940 American Association of University Professors emphasized the freedoms of individual professors and other teachers: full freedom to conduct research and publish results. Freedom of discussion within the classroom; and freedom of extramural expression, that is the freedom of academics as citizens to speak or write without institutional censorship.” (Barendt 2010, 24). In Germany, he continues, The Basic Law guarantees that arts, science, research and teaching shall be free by recognizing academic freedom as an individual right. (ibid.) This recognition extends beyond a professional right by acknowledging that everyone who is engaged in serious scholarly activity, whether they work in a university, another institution or independently, should be entitled to do their work freely. What is the scope of the claims and privileges of academic freedom as professional and intellectual autonomy? As Alfino points out, the claims of academic freedom can be recognized not only in a court but also in the intramural work relations such as contract compliance and university grievance processes (Alfino 2010, 440). It is not so rare that academic freedom might be abridged by university administrations which may be acting under government direction or pressure from private funding organizations. However, as an individual right, academic freedom must be respected by universities, states and public and private agencies (Barendt 2010, 26). In other words, the quality of academic freedom being an individual right—professional and intellectual—requires its protection from unlawful and unjustified hindrance and abridgment by the university and other external institutions.

5.2

Justifications of Academic Freedom

In an attempt to make sense of academic freedom conceptually, I argued that academic freedom must be understood as an individual and intellectual right to free speech rather than solely institutional autonomy in order to maintain its priority and significance. But why is academic freedom important at all? In this part of the chapter, I aim to discuss the justifications for academic freedom that provide us with reasons to attach high protection and priority to academic freedom as a particular right.

5.2.1

The University as a Realm of Discovery of Truth and Independent Knowledge Production

One of the most conventional justifications for academic freedom is that academic freedom is significant for the possible discovery of truth in a university setting. This

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argument considers academic freedom as an instrument for achieving knowledge which is based on truth. As Dworkin puts it, according to this view, “a system of independent academic institutions and scholars who are independent within them provides the best chance of collectively reaching the truth about a wide range of matters, from science to art to politics.” (Dworkin 1996, 10). He adds that, the argument states there is a better chance of discovering true knowledge if academics and institutions of higher education are left free from external control (Dworkin 1996, 10). In this sense, it is the classical Millian argument for the discovery of truth as a reason for general free speech applied to academic freedom. I think the discovery of truth argument can provide us with a strong reason in some respect by defining academia as a particular realm where the rigorous intellectual search for truth has to happen and it is only possible with the full conditions of free speech applied to academia. It reminds us that university is a special place where what is true is contemplated and deliberated and moreover, where knowledge is produced. This emphasis is, I believe, significant in an age where every value is measured on a scale of profit and contribution to the neoliberal market rather than its contribution and relation to other values such as truth. However, one might still wonder and ask whether the discovery of truth argument is strong enough to provide a justification that would appeal to our comprehension of academic freedom as a value and the common good that is in need of high protection. In other words, can the justification of discovery of truth on its own provide strong enough reasons for academic freedom? The sense which might lead us to think that the discovery of truth cannot be a strong ground for academic freedom on its own stems from the very fact that it is a less strong argument for supporting free speech generally. It does not require us to accept any moral or political value other than skepticism regarding the truth of our own held opinions and judgments (Bilgrami 2015, 13). In other words, the only reason why we should tolerate all kinds of views different from our own is that our past opinions might turn out to be false and that we may never know where truth lies. This kind of skepticism, although it provides a logic and reason for free speech, it is far from relying on any moral foundation in relation to the rights and liberties of individuals and therefore, as Dworkin puts it nicely, “does not seem strong enough, on its own, to justify the emotional power that many of us feel academic freedom has and that it must have. . . .” (Dworkin 1996, 10). According to Bilgrami, a Millian skeptical argument for free speech might have a chilling effect on academic freedom in and outside the university and interestingly and contrary to what most of us would believe, I suppose, it might invite control and intervention rather than freedom and autonomy. He states: “In the immediate context of political controversies in which we in university life find ourselves, the conception of academic freedom based on such classical liberal form of argument leads directly to the advice we often get, sometimes even from university presidents, about how we should be balanced in what we say in our classrooms, showing consideration to all points of view we confidently know to be wrong.” (Bilgrami 2015, 16). And moreover, he asks, “Is a professor free to say things outside the university in public

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forums that would be unsuitable for one reason or another in the classroom or at official university events?” (Bilgrami 2015, 24). Bilgrami considers the invitations to balance one’s views as an implication of too much emphasis on the Millian argument in academia. Balancing out one’s own arguments as well as allowing space to the evidently false arguments is considered by him as a control on free speech. He believes that scholars should be brave enough to express their opinions against the controlling authorities that ask from them to balance their opinions. I am not so sure whether we can easily jump to the conclusion that the Millian argument would lead to the controlling of speech in academia but one thing we can be sure of is that the Millian argument is in need of a stronger moral foundation as an addition to the skeptical argument as long as we commit to academic freedom as a high value to be protected. Two arguments can provide stronger grounds for academic freedom when compared to the argument from the university as a realm of discovery of truth: the justification of the university as a realm of democratic free debate, which is outlined in Sect. 5.2.2 below, and the equal autonomy of academics and intellectuals to freely speak and write what they think is true. I shall explain how the autonomy argument might provide a strong ground for academic freedom in Sect. 5.3 as part of my analysis on the double-grounded principled approach in relation to free speech in academia.

5.2.2

The University as a Realm of Democratic Free Debate

One of the justifications for academic freedom considers the university as a realm of free democratic debate. Unlike the justification of university as a realm of discovery of truth, this justification requires us to accept a moral value; that is the moral value of democratic free debate. On such a view, the university is imagined as a realm from where to speak freely even if that might mean telling things that would bother and offend students and society as a whole (Badley 2010, 154). Silencing on the basis of offence or unjustified claims of harm are not recognized as limits to freedom to speak and write in the university. Of course, it is generally accepted that there might be some limits to the freedom to speak even in the case of academic freedom, but the justification to silence others who think differently requires serious evidence of harm or violence. The mere expression of a controversial belief or opinion should not be treated as a threat since this would mean a fear of open argument (Badley 2010, 154). As Badley cites from Williams, indeed ‘a good institution of higher education is one in which students learn that their questions are not everyone’s questions, and their answers are not everyone’s answers. . . your world is not the obviously right and true one just because you say it is. Whatever convictions you emerge with will have been tested by this critical exposure to other ways of seeing and other sorts of investigation. (Badley 2010, 154)

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In this sense, universities are regarded as part of the democratic culture of a society where students and teachers learn from each other through open debate, which is essential to develop and respect difference and plurality of opinions and identities. It is a micro space where members are exposed to a variety of opinions and arguments, and develop their capacities of critical and skeptical thinking through open deliberation. It is important to reflect on the dimensions of the argument for the university as a realm of free democratic debate but it might be at the same time challenging as well in the context of contemporary academia. No platforming practices performed by student unions lately provide a good ground to discuss the scope and nature of free speech in academia in terms of manifesting the complexity of the issue. As Simpson and Srinivasan mention, the term “no platforming” dates back to the 1970s, when the National Union of Students adopted a policy that prohibits student unions in the UK to invite speakers of the fascist National Front Party on British campuses (Simpson and Srinivasan 2019, 3). Over time, NUS’s campaign enlarged in scope by the exclusion of variety of speakers holding various unpopular views—racism, antiSemitism, misogyny, Islamophobia and transphobia—from academic platforms. As reported by Simpson and Srinivasan, “recent targets of no platforming include George Galloway over allegations of rape denial, Iranian human rights campaigner and secularist activist Meryem Namazie, for Islamophobia, psychologist Ken Zuzker, for transphobia, and feminists Julie Bindel, Beatrix Campbell and Germaine Greer, also for transphobia.” (2019, 3). The question whether no platforming of racist, misogynistic, transphobic and Islamophobic views on campuses should be supported and if so, on what grounds is important to consider when discussing the scope of free speech in academia. In the attempted no platforming of Germeine Greer in 2015 at Cardiff University over her skeptical opinions about the womanhood of trans individuals, there was a counter campaign that defended Greer’s right to speak at Cardiff which included an open letter published in the Guardian and signed by several feminists. “The letter objected that where no platforming “used to be a tactic used against self-proclaimed fascists and Holocaust deniers” (Simpson and Srinivasan 2019, 6), now it is used “to prevent the expression of feminist arguments critical of the sex industry and of some demands made by trans activists.” (Simpson and Srinivasan 2019, 6). This demonstrated that the question of no platforming is not a simple one that could be addressed and answered as quickly and easily as one would assume. It is like a double-edged sword in the sense that both the opponents and supporters of no platforming might have reasons to argue for free speech in academia. Alison Scott-Baumann argues that the most imminent threat to academic freedom is caused by the legal regulations imposed on universities by the political authorities rather than no platforming practices. She discusses the impact of The Counter Terrorism and Security Act 2015 in the UK which places certain duties on higher institutions of education. She mentions: “The Act includes, firstly, a reiteration of the 1986 Act instruction to universities to ‘have particular regard’ to actively protecting academic freedom and freedom of speech, secondly a duty to ‘have due regard’ to the need to prevent people from being drawn into terrorism and thirdly a duty to

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‘have due regard’to the guidance that accompanies the Act.” (Scott-Baumann 2017, 162). She suggests that the Prevent has to be dismantled because it is discriminatory and has a chilling effect on free speech. In other words, it is against the idea of the university as a place where we must embrace cultural diversity and understanding as an integral part of our existence (Scott-Baumann 2017, 173). Scott-Baumann advises students, when they wish to no platform, to seek legal advice and active support from the university and when they decide to proceed to invite a speaker, there should be structured debate (Scott-Baumann, 172–173). She rightly recognizes and points out the benefits of the open democratic debate for the audience who are present in the debate such as benefiting from debating techniques, knowing how to demand evidence, identify false logic and find out inappropriate use of inductive and deductive arguments (Scott-Baumann 2017, 172–173). In line with this, she believes that open free debate is the only way we can save free speech and democracy from the establishment ideology and imposition. Ironically, recently in the UK, a proposal for a new bill, named the Higher Education (Freedom of Speech) Bill 2021, was presented in the House of Commons in May 2021. “Provisions in the Bill would: allow the Office for Students (OfS) to monitor and enforce freedom of speech measures at higher education institutions, introduce a complaints system and redress for breaches of free speech duties through the introduction of a statutory tort, extend duties on free speech to students’ unions and create a role of Director of Freedom of Speech and Academic Freedom at the OfS.”2 The bill intends to regulate no-platforming practices and their impacts and allow compensation for no-platformed speakers. However, it echoes the threats and risks to academic freedom that Scott-Bauman points out as a result of external regulation by political authorities. There are several reasons to shy away from such grand external regulations: first, the extent of the threat that no-platforming poses seems not to be as great as some would claim and second and even more importantly, we should intend to support more speech and reinforce the culture of democratic free debate in universities rather than approving external impositions by political authorities. I agree with Scott-Baumann that the establishment ideology and the imposition from the political authority are significant threats to and obstacles in front of the democratic open debate in universities. I could especially relate to her comments on the chilling effect of establishment ideology on free speech as a scholar who found herself in an academic exile due to the state oppression and dictate on universities in Turkey. In principle, I believe, a straightforward no platforming is wrong so long as we don’t want to be afraid of open debate and remain loyal to the culture of democratic debate where all the arguments and opinions are subject to challenge and criticism. I also think that students have the entitlement to demonstrate their political and moral positions by protesting and not inviting speakers whom they think should be no-platformed. However, we, as all the members of the academia, need to be very careful regarding what constitutes serious, evidence-based harm in

2

https://commonslibrary.parliament.uk/research-briefings/cbp-9215/ (Accessed on 29 June 2021).

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order not to cut the root of the tree of free democratic debate. After all, the university is a place where democratic culture regenerates through debate, cultural diversity and difference.

5.3

How Can Academic Freedom Survive?

One of the goals of this book is to test and see to what extent the proposed theoretical framework in the book is applicable to specific cases such as academic freedom and media freedom. In this sense, I think it would not be wrong to state that the boundaries of the double-grounded principled approach are stretched in the case of academic freedom on two grounds: the value of search for truth and knowledge, and the priority of political speech. First, it would be almost counterfactual to discuss academic freedom without endorsing the value of the search for truth and knowledge, since searching for truth is what academics do as their profession. For this reason, the double-grounded principled approach should endorse the significance of the search for truth and knowledge in academia. Second, it is odd to assign priority to only political speech in academia since academia is a special place where the profession of searching for truth and knowledge is conducted. Below, I shall examine in which way the proposed framework of the book applies to academic freedom and in which way its boundaries are stretched and challenged. As Dworkin rightly notes, the conventional justification of academic freedom on its own which considers free speech as instrumental to the discovery of truth does not provide strong enough reasons that would justify the emotional power that most of us feel academic freedom has (Dworkin 1996, 10). I think we might interpret Dworkin’s note here as a recognition of the need to have a principled moral ground for academic freedom rather than an instrumental reason. I too, am of the opinion that although the argument of the university as a realm of discovery of truth has a value and power on its own, it is at the same time far from capturing completely our moral emotions and expectations regarding academic freedom at the level of democratic common sense. For this reason, we need to rely on some other ground/ grounds as well as academic freedom as instrumental to the discovery of truth to claim the power and value of free speech in academia. Dworkin argues that academic freedom plays an important role in the lives of academic professionals, but at the same time in the life of the community in general (Dworkin 1996, 11). This is because, for him, academic freedom is grounded on ethical individualism as a moral ideal. Ethical individualism, he contends: . . . insists, among its other components, that we each have responsibility for making as much of a success of our lives as we can, and that this responsibility is personal, in the sense that we must each make up our own mind, as a matter of felt personal conviction, about what a successful life for us would be. Ethical individualism is the inspiration behind the institutions and attitudes of political liberalism. (Dworkin 1996, 11)

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Like each of us has an ethical personal responsibility of making the best of a life of our choice, professors and other members of academia have a responsibility of their own to make the best of their chosen lives, in the sense that they have a duty to discover and teach what they find significant and true. In other words, Dworkin claims, this is a responsibility to truth and in this way, “the closest professional responsibility can come to the fundamental ethical responsibility each of us has, according to the ideals of ethical individualism, to live our lives in accordance with our own felt convictions.” (Dworkin 1996, 12). Ethical individualism requires a particular culture—a culture of independence— in which to flourish (Dworkin 1996, 12). A culture of independence is the opposite of a culture of conformity: the culture where truth is not collected person by person but it is embedded in monolithic traditions, and disagreement with the truth of the culture is treated as treason. Here, Dworkin refers to political cultures such as Khoumeni’s Iran, Torquemada’s Spain and Joe McCarthy’s America as examples to illustrate the features of a culture of conformity. I think in today’s world, along with Iran, we might point out the countries such as Turkey, Azerbaijan, Venezuela, Russia and some others as cultures of conformity where dissent is treated as a crime and academics and intellectuals have to face serious threats due to their opinions. Unfortunately, there have been a growing number of scholars in exile who had to leave their countries during the last decade. An important note has to be emphasized though it must be obvious to common sense, cultures of conformity are created and maintained by autocratic political leaders and elites and they are by no means the product of autonomous cultural generation. I started the section with reference to Dworkin since, I believe, his theory of ethical individualism offers a solid principled ground for academic freedom while at the same time endorses the significance of the discovery of truth/knowledge production in the academic realm. In other words, he acknowledges that the search for truth/knowledge is an integral part and goal of our profession as academics and we do not have to relate this goal to free speech on an instrumental ground as the discovery of truth argument does. In this sense, his treatment of the issue on a motivational level is in line with the double-grounded principled approach that I have developed in this book. As explored in the previous chapters of the book, the double-grounded principled theory is founded on two moral foundations that offer a justification for free speech in combination: the principle of equal autonomy and democratic participation. The principle of equal autonomy endorses that individuals are entitled to speak freely in line with their chosen conceptions of good as a result of their autonomous capacities. In other words, it is a requirement of autonomous choices to speak, write and talk freely. In addition to the speaker’s autonomy, individuals have a right to hear and listen freely what others have to say to be justified in their choices as well as developing and criticizing their conceptions of life. Both speaker and listener autonomy are requirements of the equal moral status of individuals who are capable of choosing and living a life they think fit them. Here, Dworkin’s emphasis on individual ethical responsibility parallels and completes what I aim to argue:

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individuals, as a result of their equal autonomous status, have a responsibility to act in the best ways possible to live the life they have chosen. The principle of equal autonomy, when applied to academic freedom, considers professionals in academia no different than individuals who are entitled to speak in line with their conceptions of good. Just like everyone else, academics also have the right and responsibility to speak in line with what they think is true. This is part of their life choices and a requirement of their equal autonomy. Dworkin’s emphasis on the connection and proximity of academic freedom to our intuitions about general free speech rights makes great sense here. The life of an academic is founded on a purpose to discover what true knowledge is and how this knowledge might serve society. By its very nature, the profession itself has a particular value in the sense of disseminating knowledge and sharing what was discovered during the research with community at large. In this sense, academics, not only have a right but also an unquestionable responsibility to speak, write and disseminate what was found freely. This is a ground that values the central significance of the search for truth and knowledge in relation to academic freedom too. The second foundation of the double-grounded principled theory, democratic participation, is a requirement and essential constitutive component of the freedom of speech. Free speech rights, in order to be fully endorsed, require a democratic context which allows everyone to speak freely in a society. The principle of equal autonomy is incomplete without democratic deliberation. In order for democracy to exist, free speech is a requirement because democracy is about speaking, deliberating, reflecting, and criticizing. In this manner, free speech is a constitutive component of democratic participation. This correlates with what Dworkin notes about the requirement of a democratic political culture—independent culture—for ethical individualism to flourish as opposed to a conformity culture in which dissent from the traditional culture is regarded with hostility. Independent culture can only be a component of a democratic culture in which free speech is endorsed as a principle grounded in the equal moral autonomy of each and every individual. When taken alone, the democratic participation justification can leave us with a puzzle; that of whether we should prioritize political public speech which aims to contribute to democratic deliberation when contemplating academic freedom. The First Amendment theorists such as Meiklejohn and Sunstein prioritized political speech as the first tier to be protected when compared to other non-political speech. However, this strategy will not work with academic speech given the nature of academic speech that overarches the realm of politics defined narrowly. Academic speech might aim to contribute to democratic deliberation but it would be odd to expect all academic speech to be political in order to be protected. Regardless of the political nature of academic speech, we must be able to protect speech in academia as such. In this sense, the double-grounded theory—combining equal autonomy with democratic participation—provides a ground where all types of academic speech are treated with the same priority, be it political or not. Of course, this is not to say that there are no limits or regulations on issues such as hate speech or violent acts in academia. In the cases of evidence-based harm and violence, there will be rules for regulating academic speech within the institutions of higher education.

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As the title “How can academic freedom survive?” suggests, I aimed to contemplate the possibility of offering a strong justification for academic freedom which is sensitive to our intuitions and emotions about the meaning of freedom in the university. I recommended that it is significant to go beyond an instrumental treatment of free speech in academia without totally disregarding the function and value of the goal of the discovery of truth as such. In line with this, I contended that double-grounded principled approach to free speech, when applied to academic freedom, should be complemented with a Dworkinian emphasis on personal ethical responsibility which notes that it is not only the right of the scholars to speak freely but at the same time their ethical personal responsibility to truth so far as they have a duty to live their conceptions of a good life in the best way possible. In other words, the Dworkinian addition supplies the proposed framework of the book in endorsing the central value of the search for truth in academia on non-instrumental grounds. Lastly, I wish to note that I do not intend to claim that double-grounded principled justification can solve all the controversial problems relating to the violation of free speech rights that emerge in academia.3 However, where free speech rights of scholars are violated, the claims that ask for retribution can find a solid ground of appeal to argue for why it is significant not to violate the right to free speech in the university without any proof of harm or violence. In line with what has been said, it is also significant to note that the limits of free speech are not always easily identifiable. Nevertheless, it seems that evidence-based harm and violence relating to speech can help us to determine to a certain extent what qualifies as free speech requiring protection and what does not in academia.

3

Jennifer Lackey discusses the limits of free speech through two cases in academia: content regulations and microaggressions. She identifies content warning as “a statement about the content of material that one is teaching, issued in advance, so that students may prepare themselves for it.” (Lackey 2019, 8). She notes that even though content warning is acceptable, coercive demands for content warning must be viewed as illegitimate and furthermore, coercive demands for “what is misunderstood as a content warning are even more illegitimate.” (Lackey, 11) Microaggressions, according to Lackey, are “utterances or behaviors that while individually small, can cumulatively have highly negative effects on members of stigmatized groups. Classic examples include making less eye contact with black people, assuming that those who look foreign are non-native speakers of English, interrupting women more frequently than men” (p. 12). She mentions that these can be either intentional or unintentional but the real worry is that they can be a real threat to the free speech rights of scholars under the conditions of precarious employment in academia since any kind of claim regarding an attitude of what might be labeled as microaggression might lead to the loss of job of a scholar who is employed by temporary or fixed contract (pp. 12–16). Lackey’s concern regarding the limits of free speech in academia is sensible since a considerable number of scholars are employed through temporary contracts and neoliberal demands put extra pressure on them through positioning students as customers and scholars as service providers. In other words, appeals made by students regarding content warnings and microaggressions might lead to the loss of job of the scholars or restrict the speech of the teachers and researchers through the psychological pressure of the possibility of losing their jobs.

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5.4

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The Neoliberal Expectations and Transformation of Academia in the United Kingdom

The neoliberal transformation of higher education has been a common phenomenon around the globe for the past few decades. Having had the opportunity to work in diverse academic contexts in different countries so far, it is now even more solid and tangible for me to argue that we have been going through a global process of marketization of knowledge at higher institutions of education. As it is wonderfully put by Nussbaum in her text Not for Profit, what has been dominating our experiences in higher education is education for profit which targets economic growth with little or no regard for developing democracy (Nussbaum 2010, 15). This logic requires that all actors in higher education (students, scholars, administrators etc.) behave in line with the demands of the global neoliberal market. Regardless of how much we are aware of this matrix, we are forced to be part of this profit-oriented structure. Neoliberal logic and its demands have an impact on our notion of free speech in academia in terms of defining the boundaries of our practice of speaking as well as moral values in academia. That is why any attempt to reflect on academic freedom and its relation to free speech must consider the impact of the neoliberal global transformation of higher education in academia in the contemporary era. Below, I intend to reflect on the possible ways the practice of speech is impacted by the demands imposed by the logic of the neoliberal market by particularly focusing on the United Kingdom. Starting with the Thatcher era, “the New Right movements of the 1980s and 1990s in England created an educational service market, which was neither entirely public nor entirely private.” (Koltutski 2014, 114). The intention of the new right was eventually to privatize education but at the same time to maintain some control on the higher institutions of education (Koltutski 2014, 114). This attempt aimed at totally transforming the university into a private actor in the market and the education into a private product rather than a public good. The university has been viewed as an institution which has to generate its own financial means and therefore, subject to the rules of competitive market conditions. Traianou states that especially as a result of the oil crisis of 1973 and 1979, universities had to face serious cuts in financial support from the government and throughout the 80s and 90s, the purpose of higher education has been viewed in terms of meeting the needs of the economy (Traianou 2015, 34). As a result, there has been great pressure on universities to find financial support and funds from the private and industrial sectors. Moreover, fees for oversees students were increased and later it was decided that the UK students should pay tuition fees as well, which led to the view that students are positioned as customers (Traianou 2015, 3).4 “When tuition fees for home students were introduced in 1998, institutions were allowed to charge up to 1000 pounds. In 2004, this maximum was increased to 3000 pounds. Then in 2010, in the aftermath of the 2008 economic crisis, the Coalition government increased the cap on fees to 9000 pounds.” (Traniuou 2015, 4).

4

5.4 The Neoliberal Expectations and Transformation of Academia in the United. . .

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As a result, this market oriented neoliberal logic imposed its own values and rules of functioning on the universities such as structural reshaping of the university administration in terms of managerialism being the dominant method of governing, and knowledge being a commodity sold to students, the view of students as customers, the decrease of tenured permanent jobs and the precarization of academia through the increase in adjunct and temporary teaching positions as opposed to permanent secure positions. The transfer of power from academics to the administrators/managers in the universities has had a serious impact on the exercise of free speech in and outside the campus. From managers’ point of view, forms of knowledge that are not seen as sufficiently profitable to sell to students, private donors or the government should be scrapped in favor of more profitable areas of inquiry (Ginsberg 2011, 168). This kind of logic directly interferes with what is acceptable and expected to be discussed and produced in the university in terms of knowledge in order to serve the demands of the neoliberal market capitalism. In other words, both the content and the scope of speech are shaped through a managerial mentality which is at the service of profit rather than truth or knowledge on its own. Administrators might even interfere in classrooms where they think that the views of donors and college constituencies are not being treated with proper respect (Ginsberg 2011, 159). In this sense, things can go so far that managers may change the content of existing courses to please important interests. (ibid, 159). Moreover, the role of the Vice Chancellor has been strengthened in order to facilitate the managerial administration of universities in the UK (Traianou 2015, 4–5). In line with this, “the roles of deputy and Pro-Vice Chancellors have also become more significant, becoming full time appointments, with incumbents leading managerial teams responsible not just for teaching and research but also for external relations and community engagement, ‘knowledge transfer’, etc.” (ibid.) Together with this centralization and managerialization, the autonomy of faculties, departments and individual academics were reduced in the sense that they now have less power in deciding about important matters regarding teaching and research. For instance, decisions about curriculum are now much more centralized and strongly determined by the financial return which is a characteristic of managerial administration of the university. As Traniuou aptly reminds us, a striking example of this effect was the decision taken by Middlesex University in 2010 to close its Philosophy department in order to use its resources in areas where a better return is available (Traianou 2015, 5–6). In line with the rise of managerialism and the transformation of the university into a private actor in the market where knowledge is no longer a public good, universities had to face the phenomenon of a rising precarization of academic labor. The 1988 Education Research Act has removed the original tenure system in the UK by enabling universities to make staff redundant when it is necessary for economic reasons or reducing the size of the department (Barendt 2010, 92). However, this change did not apply to the academic staffs who were appointed on or before the publication of the Bill, which gave universities the freedom to terminate the contracts of the new members of their staff while the seniors were able to keep their tenure. As a result of the anxiety that academic freedom would be compromised due

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to the removal of tenure, “Lord Jenkins of Hillhead, Chancellor of Oxford University, moved an amendment to the Bill in the House of Lords to ensure the freedom was safeguarded.” (Barendt 2010, 92). The academic freedom clause was added to the Bill, which states that the University Commissioners must have regard for the need “to ensure academic staff have freedom within the law to question and test received wisdom, and put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at their institutions. . .” (Barendt 2010, 93, cited from ERA, s 202 (2)(a)). However, this protection applied only to qualifying higher institutions of education that were established before 1992, by excluding the polytechnics which were founded after 1992. The precarization of academic labor is not limited to the official removal of the original tenure system, which has to do with the transformation of the status of academic labor within the university. That is to say, the more pressing issue has been the increasing expansion of contract based, temporary and adjunct academic positions within academia as a main resource of teaching and research. This generated a system which relies heavily on the labor of temporary fractional lecturers and only a core limited number of academics who have permanent positions. The impact of this systemic job insecurity in academia on academic freedoms can be detected clearly. It is only with tenure which provides a structured job security; scholars can write, speak, research and teach what might go against the conventional wisdom. As Ginsberg reminds us looking from an American experience, no one would argue that tenure system produces perfect results but without tenure, there is no academic freedom (Ginsberg 2011, 165). As a structural component of the neoliberal marketization of higher education, education has begun to be seen as “education for profit” rather than “education for democracy” as Nussbaum draws our attention to in her book Not for Profit.5 Here, Nussbaum addresses a global shift in the perception and presentation of higher education as a means to contribute to economic growth and profit rather than education as a means to raise democratic citizens which value critical thinking and inquiry as well as a positive disposition towards human diversity and difference. This Nussbaumian view rests on the idea that universities are places where citizens learn to debate democratically and gain critical insight and knowledge on the various aspects of the human condition. Therefore, free speech is an essential and necessary circumstance of higher education institutions as a principled commitment as long as we are committed to democracy and its development. However, in the contemporary world, it is often emphasized globally that the goal of universal education is to create future workers and ensure that students compete in the global market (Koltutsky 2014, 112). As a result of this, much emphasis has been placed on profitable, technical knowledge that would serve the needs of the market and the needs of the students who would have to compete in the global market. This

5

See Martha Nussbaum, Not for Profit-Why Democracy Needs the Humanities (Princeton and Oxford: Princeton University Press, 2010).

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logic is blind towards the normative moral goals of universal education to raise citizens who can think and debate critically and freely and therefore, contribute to the development and functioning of democracy. In other words, it is not concerned with the conditions of free speech as a prerequisite for democratic debate in the university. Put precisely, the university has been increasingly losing its capacity as a place from where you can speak freely due to this blind logic of neoliberal marketization of higher education. How can we counter this trend of the loss of the academic freedoms in an age where neoliberal market ethics determine what knowledge is and how it should be achieved and disseminated? The only way to raise our hopes and survive seems to be remembering and sticking to the ideal function and meaning of the university; a place where a genuine search for true knowledge takes place, where all ideas are contested and critiqued and where democratic debate takes place among students and scholars. In parallel with this, Bradley correctly points out that we should reconfigure the university as an idea polis where “original and significant and traditional ideas would be rigorously contested and critiqued” as well as university as a “democratic agora where students and teachers would gather to talk and learn what it means to be active citizens in a democratic society.” (Badley 2010, 158–159). This would reject, he believes, the university as merely a place where students are viewed as economic beings who are prepared for the market as workers and consumers and where teachers are viewed as traders and trainers in the educational marketplace (Badley 2010, 158–159).

5.5

The Authoritarian Challenge and Academic Freedom in Turkey

In the previous section, I examined certain neoliberal challenges in academia as obstacles to academic freedom in the UK. This analysis was part of an attempt to understand how academic freedom can survive and how the double-grounded principled approach can inspire us to claim the importance of academic freedom as such. In this chapter, I intend to investigate certain authoritarian challenges as obstacles to academic freedom in Turkey in the last few decades; with the intention to reflect on how academic freedom can survive in an authoritarian setting. The relation between the ruling powers and academia has never been an easy and fully democratic one in modern Turkey. Although the nature of the exercise of power over knowledge has changed according to the necessities of particular historical periods, the urge to control academia and what is produced as knowledge has been an important motivation of the ruling powers. However, it can be argued that till the beginning of the 1980s, universities had a relatively autonomous status marked by the 1961 Constitution, which clearly labeled universities as autonomous institutions from an administrative and scientific aspect. According to Article 120 of the Constitution, the universities were ruled and inspected by the institutions that were

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established by their own members and furthermore, members of the universities could not be fired by external institutions no matter what the reasons were.6 In the light of this legal space, during the 60s, universities enjoyed a period of relative freedom and institutional and professional autonomy. In 1973, with the Universities Law, the Council of Higher Education (YÖK) was introduced as a regulatory body that would inspect the practices of higher education institutions in Turkey.7 The article that established the Higher Council of Education was found unconstitutional by the Constitutional Court for the reason that it violated the principle of institutional autonomy of the universities codified in Article 120 of the Constitution.8 The 1973 Universities Law was written in the light of the military intervention of March 1971 and it had an agenda to control the student movements that had been accelerating in recent years. Nevertheless, the Council of Higher Education (YÖK) came into flesh and blood once again after the Military coup of 1980 and this time it was here to stay. The establishment of YÖK in 1981 marked a structural crystallization of the motivation to control academia in a functional authoritarian form. It was an expected move from the military rule of the time as far as the political conditions of the country was concerned. Throughout 70s, Turkey was in a turmoil of ideological conflict and violence at the societal and political level. The political ideological conflict was reflected in the administration of the universities as well. The ruling military power considered academia as one of the actors responsible for the political conflict and violence that had prevailed in the country during the 1970s. Moreover, there were functional and administrative problems due to the lack of a regulatory body that could coordinate and facilitate academic assessment standards (Gur and Celik 2016, 301). The Higher Education Act on 6 November 1981 established an institution called the Council of Higher Education, invested with high powers and authority over universities. With the establishment of the Council of Higher Education, all administrative positions in the universities such as the positions of the presidents/rectors and the deans, which used to be elected posts, became appointed posts. All the members of the Council of Higher Education board were to be appointed by different institutions; 8 members to be appointed by the Inter-University Council (UAK), 8 to be appointed by the President of the country, preferably from among current or retired rectors, 8 to be appointed by the cabinet from among high-ranking civil servants and one by the joint Chief of Staff. The president of the Council was to be appointed by the President of the country and the appointment of all members was subject to the approval of the President of the country as well (Gur and Celik 2016, 3102). Given this administrative structure, it is obvious that this institution is designed as an agent of direct control by the Presidency.

6

https://www.resmigazete.gov.tr/arsiv/10816.pdf, Accessed on 2 October 2020. See article 120. https://www.resmigazete.gov.tr/arsiv/14587.pdf, Accessed on 2 October 2020, see article 4. 8 http://kararlaryeni.anayasa.gov.tr/Karar/Content/a9052651-20b0-4cdd-adf9-10e14869c599? excludeGerekce¼False&wordsOnly¼False, Accessed on 2 October 2020. 7

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Both the structure and the function of the Council of Higher Education have been a contested issue and subject of debate among the scholars, students, experts and even politicians. It has been argued, for good reasons; that the Council has taken back the academic autonomy of the universities, over-centralized the coordination and administration of higher education and imposed authoritarian military discipline over higher education in the country (Gur and Celik 2016, 303). It was suggested by different governments to abolish the Council totally and establish a new system of coordination that is more democratic; the last promise was made during the early 2000s when the AKP government came to power. However, the Council was a tool for claiming legitimacy and justification for the surveillance and control of academia and no political authority would want to lose such an instrument. Indeed, the Council has become less independent over the time and after the failed coup in July 2016, it was transformed into a ghost institution that acts as the hand of the President in Turkey. This was marked by the cancellation of the rector elections with the emergency decree in October 2016. On the previous regulation, the rectors were appointed by the President among the three candidates that received the highest votes of the university members, who were recommended by the Council of Higher Education. According to the latest change, the rector candidates apply directly to the Council and the Council recommends three candidates to the President. In other words, universities have become institutions that are ruled by the Presidency of the country and the Council of Higher Education, as a hand of the Presidency, which has transformed into an institution whose main function is to facilitate this new regime of control.9 As mentioned before, the State has never accepted fully a democratic attitude towards academia in Turkey. The threats against the scholars and intellectuals, especially during the military coups, have a long history. The dismissals of 147 academics in the wake of the 1960 military coup (Demir 2006; Gunduz 2013) and of 1402 after the military coup in 1980 constitute well-known examples in Turkish history. Intellectuals and academics have also been jailed for their research and writings. Ismail Besikci is one of the most well-known cases; a sociologist who had to spend 17 years in prison due to his research on the Kurdish question (Ordek 2016, cited in Aktas et al. 2019, 170). As Gole mentions, after recovering from 1980 coup, Turkey has experienced a sort of period of ‘intellectual prosperity’ during 1990s thanks to the “Turkish intellectuals and cultural sphere that has generated not only the ideas, but also

9

One of the latest examples of this transformation attempt is the appointment of Melih Bulu, as a rector to Bosphorus University, by the President in early 2021. This appointment has been criticized by the academics and students of Bosphorus University since Bulu was not elected by the members of the university. A resistence organized by the academics and students has been going on against this external intervention to the administration of the University since early 2021. As a result of the success of the resistence, in July 2021, Melih Bulu was dismissed from his post by the President and unfortunately replaced by Bulu’s deputy. However, the members of the Bosphorus University has not given up their demand for electing their rector and as I complete the last revisions of this manuscript, their resistence has been still continuing.

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infrastructures that accompanied production of knowledge in public and private universities.” (Gole 2017, 878). During this time, many scholars returned to country from abroad and new publishing houses are opened. Conferences and seminars attracted many scholars from abroad. However, this relative intellectual openness did not last long and especially during the last two decades or so, threats have become more oppressive and systematic both in the sense of actual control of academia by the state and self-censorship. In other words, in recent times, the content and scope of knowledge produced in academia has been controlled through strict surveillance, i.e. the cancellation of conferences on certain topics by the Council of Higher Education and prosecutions and dismissals of academics with emergency decrees. These practices are products of the authoritarian political environment of the last decade in Turkey which was further escalated with the failed coup of 15 July 2016. Authoritarian threats and practices against academia gained an unprecedented momentum in the last five years in Turkey. The purge and prosecution of “Academics for Peace” and the dismissal of thousands of scholars from public service through emergency decrees in the aftermath of the 15 July coup attempt constitute two well-known latest examples of the threats against academia in Turkey. In addition to this, thousands of academics lost their academic positions due to the closure of the 15 universities whose stakeholders were charged with involving or supporting the failed coup attempt. According to BBC Turkish, within a one year period after the coup attempt, 5247 academics were debarred from their jobs and 2808 academics lost their jobs due to the closure of the university that they worked at.10 This was a period where academics, along with other public officials, were expelled from public service in long lists as attached to the emergency decrees under a state of emergency rule. On 11 January 2016, a petition ‘We will not be a Party to This Crime’ was issued by an initial 1128 academics from Turkey and abroad to criticize the Turkish state’s attitude towards the Kurdish issue in south eastern Turkey. After the first week, with the addition of new academics that supported the initial signatories, the number raised to 2212. Basically, the petition accused the Turkish state of violating its own laws and international treaties to which Turkey is a party in its war against PKK in the eastern Anatolia (Ozkirimli 2017, 852). The government responded to the petition with an immediate criticism and the accusation that the signatories supported the separatist terrorism. President Recep Tayyip Erdogan directly involved and blamed the academics for ‘treason’ with harsh words.11 This petition could have been tolerated by a democratic state as a declaration of criticism raised by some scholars regarding the state’s actions and policies but it generated a huge campaign of condemnation against the Academics for Peace in

10

https://www.bbc.com/turkce/haberler-turkiye-40567898 (Accessed on 24 March 2020). https://www.bbc.com/turkce/haberler/2016/01/160111_erdogan_akademisyen_aciklama, (Accessed on 24 March 2020). 11

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Turkey due to the authoritarian political circumstances.12 Soon after the press release of the petition, the Council of Higher Education sent letters to the universities which have Academics for Peace signatories among their staff and in line with this, some scholars were sacked, while others were suspended and put under investigation by these universities (Abbas and Zalta 2017, 625). Moreover, in smaller cities, some academics were interrogated and received death threats from students on and off the campuses. Signatories, individually, were taken to court under Article 7 of the antiterror law for ‘making propaganda in favor of a terrorist organization’ and/or under articles 301 and 216 of the Turkish penal code for ‘insulting Turkishness’ (Abbas and Zalta 2017, 625). On 7 February 2017, 184 Academics for Peace among 330 academics in total were expelled altogether from public service; one of the most draconian purges in Turkish history. Dismissal and expulsion meant not being able to work in any public jobs in the country, confiscation of passport, and the revoking of the pension and other social rights. Until 11 November 2019, in 3 and half years time, 822 of the signatories among the 2212 were taken to court with the same charge of supporting terrorism and some of them were convicted for 15 to 36 months of imprisonment.13 On 26 July 2019, the Constitutional Court ruled that the petition ‘We will not be a party to This Crime’ is an exercise of free speech rights and that any type of punishment against the signatories means violating the free speech rights of these persons.14 After this long awaited decision, on 6 September 2019, the first verdict of acquittal of one of the signatories was ruled. As of 11 November 2019, 486 acquittals were decided by the courts and 336 signatories were still waiting for the decision of acquittal.15 The case of Academics for Peace has become quite well-known internationally among academics and intellectuals thanks to the efforts of the network of Academics for Peace; which called for solidarity for the signatories who had to face threats and hardships in Turkey but also who had to remain in exile abroad. In addition to Academics for Peace, thousands of other academics, who were not signatories, were either expelled from public service or lost their jobs due to the closure of the universities that they worked at in the aftermath of the 15 July coup attempt. According to the Council of Higher Education’s records, 2808 academics lost their jobs due to the closure of 15 universities which were charged with having links to Gulenists, who initiated the failed coup attempt. The investigation process of the academics that were expelled with the emergency decrees carried out by the universities. Universities knew they were not fully 12

For the full text of the petition, see https://barisicinakademisyenler.net/node/63 See https://barisicinakademisyenler.net/node/1697. For a most recent report on the “Right Violations Against the Academics for Peace”, see https://barisicinakademisyenler.net/node/314 14 For the full text of the Constitutional Court Decision, refer to https://kararlarbilgibankasi.anayasa. gov.tr/BB/2018/17635. In addition, Yaman Akdeniz and Kerem Altiparmak wrote a brilliant book which explains from a legal perspective indetail how and why the charges against the Academics for Peace were illegal by analyzing the Turkish and international laws and regulations. See Baris icin Akademisyenler- Olaganustu Zamanlarda Akademiyi Savunmak (IletisimYayinlari, 2018). 15 See https://barisicinakademisyenler.net/node/1697 13

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independent in their inner decisions and disciplinary procedures but at the same time, most of the managers who were in charge of executing the disciplinary procedures were in a competition to make the governors of the country happy and assured. It was not uncommon that the academics picked for investigation did not know why they had been chosen and what the charges against them were. It was a witch hunt. The academics who were expelled by the decrees lost their rights to work in any other public job, lost their pension rights and rights to move outside the country since their passports were revoked. The academics who lost their jobs due to the closure of 15 universities found themselves in an odd situation as well. They were not expelled by decrees but they were labeled as Gulenist terrorists since they worked at the universities which were closed with the charge of having links to Gulenist terrorism. They were excluded from the academic job market, and in some cases in other job sectors, due to the fear and belief that they could pose threats to the institutions and the community. For this reason, many scholars had to move to other countries where they could find academic jobs, mostly temporary positions. The scholars who remained in the country had to work in non-academic jobs when they could find them. There is no doubt that Turkey has experienced an unprecedented period in terms of threats against academic freedom in the last couple of years. As mentioned before, the relation between academia and political authority has always been a problematic one. Yet, the past few years have transformed academia deeply and erased academic freedom almost totally as a value from the terminology of Turkish academia. Direct practices of control such as the closure of universities in one night, expulsions of academics from public service through decrees, investigations and arbitrary dismissals of academics have not left a space in academia to discuss what academic freedom means and how it can be saved. The Council of Higher Education did not have the final say in the decisions regarding academia during this period and moreover, it operated as an institution that execute whatever it was told by the government and the President. No need to mention that it did not act in any way to support academic autonomy and the rights of the academics to speak freely. However, as mentioned before, the direct control of academia by political power has always been a common trend in Turkey even though the intensity and the methods of the control have changed due to the political and social circumstances in the country. Neoliberalism, as well as authoritarianism, has been introduced to the Turkish academic scene which has had a negative impact on academic freedom as well. Starting in the 1980s, the Turkish higher education system had to go through an institutional transformation in line with the neoliberal policies of the governments to integrate Turkey into the world capitalism (Aslan 2014, 258).16As part of this transformation, private universities were established. This process, on the one hand, contributed to the diversity of the institutions of higher education by providing

16

In addition, for an in dept. analysis of the neoliberal transformation of higher education under the AKP rule, refer to K. Inal and G. Akkaymak (2012). Neoliberal Transformation Of Education in Turkey (Palgrave Macmillan, United States).

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different options for students. But on the other hand, it contributed to the marketization of higher education by accelerating a process of education for profit. Just like in other parts of the world, universities have begun to design their curriculums and research priorities according to the demands of the market. In addition to this, precarization of academic labor has been a common trend in the late couple of decades. It has been a widespread practice especially for private universities, to employ scholars under temporary contracts, without the promise of a tenure and job security. These two trends, in a parallel manner to the UK example, have constituted obstacles to academic freedom in Turkey. Knowledge for profit as the prior value has led to the disregard for the genuine search for true knowledge and scholars, with the continuous threat of losing their jobs, have begun to self-censor their speeches. There is no doubt that neoliberal trends in academia have already been an obstacle to academic freedom in Turkey. Nevertheless, it has been the oppressive and direct interventionist actions of the state such as the expulsion of academics from their jobs, interrogations and prosecutions of scholars on the basis of their political opinions that have led to destruction of the academic culture in contemporary Turkey. The state of emergency rule was lifted after two years but Academics for Peace could not go back to their jobs. Many other scholars, who lost their jobs, are still either displaced and live abroad or try to survive inside the country without the hope of ever being able to lecture in academia again. The employments and placements in academia are so highly politicized that it is almost impossible for a scholar to be offered an academic post unless they are a supporter of the current AKP (Adalet ve Kalkinma Partisi) rule. Authoritarianism has impacted society and culture at different levels in Turkey. Academia is impacted intensely due to its function to produce and distribute knowledge. The ruling power made use of the extraordinary powers it obtained during the emergency rule to expel almost all the scholars from academia who are critical of the current government and the President in Turkey. Amidst this grim picture, it seems the rescue of academia depends on what kind of political journey the country will have. So far, the last decade and the last few years even more so, have proven that authoritarian measures that bypass the rule of law have destroyed what has been produced in terms of academic culture and freedom. But, this does not mean that we should give up the ideal of the university as a place where one speaks and writes freely. Turkey is an acute example where the ideal of the university seems too far away to achieve any time soon. However, there is still a light at the end of the tunnel as we consider the determination and motivation of the displaced scholars, such as the expelled Academics for Peace, to continue academic lectures and seminars in alternative settings.17 There is an emerging diaspora of scholars from Turkey in

17

Street academies are among such examples which illustrate how academic activity can be carried out outside academia. A group of ‘Academics for Peace’ who has been expelled from university has lectured and given seminars in open spaces such as parks in Ankara since 2016. For a detailed sociological analysis of the street academies in Ankara, see Vezir Aktas, Marco Nilsson, Klas Borell

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Europe and North America that has a motivation to contribute to the knowledge production in Turkey as well. As the double-grounded principled approach developed in this book reminds us, academia is a place where scholars produce their work exempt from the intervention of political power and participate freely in the governing of their institutions. The grim reality might obscure the ideal but it cannot erase it totally as long as scholars do not give up their hopes of a democratic academia.

5.6

Conclusion

This chapter analyzed the topic of academic freedom in relation to free speech while focusing on conceptions and justifications of academic freedom. I investigated how academic freedom can be justified from theories of free speech in general, and considered to what extent and how the double-grounded principled approach can justify academic freedom. First, I focused on two conceptions of academic freedom that reflect our common sense understanding of freedom in academia: Academic freedom as institutional autonomy and academic freedom as professional and intellectual autonomy. I claimed that institutional autonomy, understood as administrative autonomy, is incomplete because there is no guarantee that the administrators will always assign priority to academic freedom over other values. In line with this, I argued that academic freedom as professional and intellectual autonomy has to be prior to institutional autonomy in order to protect the free speech rights of academics. Secondly, I concentrated on two ways to justify academic freedom: academia as a place for discovery of truth and independent knowledge production, and academia as a place of democratic free debate. I claimed that the discovery of truth argument alone does not require us to accept any moral principle other than skepticism about our own beliefs, which makes it a weak ground for free speech on its own. Therefore, I maintained, the argument from academia as a place for the discovery of truth must be complemented by stronger justifications such as the justification of the university as a realm of democratic free debate and the autonomy of academics to speak freely. The university as a realm of democratic free debate provides us a stronger justification by recognizing the priority of free speech rights as indispensable for democratic debate and the autonomy argument allows us to appreciate the value of the free speech rights of academics to speak and listen freely as part of their profession, the search for knowledge and its production. In line with the above, I aimed to test the double-grounded principled approach to see to what extent it is able to provide a strong ground for academic freedom. I argued that the boundaries of the double-grounded principled approach are stretched on two aspects regarding academic freedom: the central value of the search for truth and Roland S. Persson (2019), Taking to the Streets- A Study of the Street Academy in Ankara, British Journal of Educational Studies, p. 1–24.

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89

and knowledge and the priority of political speech. I contended that doublegrounded principled approach can acknowledge the value of the search for truth by emphasizing that equal autonomy is integral to perform the profession of searching for truth. In other words, it is not possible for academics to perform their profession without being able to speak, listen, write and disseminate freely. Moreover, I maintained that equal autonomy establishes a non-instrumental relation between the value of the search for truth and knowledge and free speech rights, and in this sense, it provides a strong ground for academic freedom. I noted that in this way the double-grounded principled approach shares Dworkin’s idea of personal ethical responsibility as a ground for academic freedom as well; i.e. it is the ethical responsibility of academics to exercise their free speech rights to live according to their chosen conception of good, which is to search for truth and knowledge. Finally, I also noted that assigning priority to political speech cannot hold valid and be justifiable in the context of academia due to the specific function of academia as a place where the search for truth and knowledge occurs. In other words, there can be some speech in academia that aims to contribute to public deliberation in society but it would be unjustifiable and odd to require all types speech in academia to be political in order to be protected. I accepted that the double-grounded principled approach does not apply to academia in relation to its two-tier approach. However, this is not to suggest that the democratic participation argument does not apply to academia at all. On the contrary, academic freedom is supported by and integral to the argument from democratic participation because it values the self-governing rights of academics and democratic free debate as two indispensable pillars of free speech in academia. In the last section of the chapter, I examined two countries—UK and Turkey—in relation to academic freedom and reflected on some practices in both countries through the lense of the proposed theoretical framework of the book. The section on the UK examined the contemporary neoliberal transformation of higher education as an obstacle to academic freedom. I argued that the changes in the UK such as precarization of academic labour, managerialism of administration in academia and the transformation of the university into a private corporation in the market function at the expense of free speech in academia. In the section on Turkey, I emphasized that the control of the speech in universities by the state has been a common legal practice in Turkey, especially after the establishment of the Institution of Higher Education in 1983. However, I claimed, there has been a rapid authoritarian transformation in the last couple of years with the introduction of new legal measures such as the abolition of rector elections which gave the President the power to choose and appoint the rectors of all the universities in Turkey. In line with this, I noted that the current reality of Turkey is a long way off from the ideal of academia as a place where scholars are able to produce their work without the intervention of political power and participate freely in the governing of their institutions.

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References Abbas, Tahir, and Anja Zalta. 2017. ‘You Cannot Talk About Academic Freedom in Such an Oppressive Environment’: Perceptions of the We Will Not Be a Party to This Crime Petition Signatories. Turkish Studies 18 (4): 624–643. https://doi.org/10.1080/14683849.2017.1343148. Akdeniz, Yaman, and Kerem Altiparmak. 2018. Baris icin Akademisyenler-Olaganustu Zamanlarda Akademiyi Savunmak. Iletisim Yayinlari. Aktas, Vezir, Marco Nilsson, and Klas Borell. 2013. Social Scientists Under Threat: Resistance and Self-Censorship in Turkish academia. British Journal of Educational Studies 67 (2): 169–186. Aktas, Vezir, Marco Nilsson, Klas Borell, and Roland S. Persson. 2019. Taking to the Streets—A Study of the Street Academy in Ankara. British Journal of Educational Studies 2019: 1–24. Alfino, Mark. 2010. Academic and Intellectual Freedom. In Handbook of Intellectual Freedom, ed. Mark Alfino and Laura Koltutsky. Library Juice Press. Aslan, Gulay. 2014. Neoliberal Transformation of Turkish Higher Education System: A New Story of a Turning Point Draft Proposition of the Higher Education Law. Journal For Critical Education Policy Studies 12 (2): 255–283. Badley, Graham. 2010. A Place from Where to Speak: The University and Academic Freedom. British Journal of Educational Studies 57 (2): 146–163. Barendt, Eric. 2010. Academic Freedom and Law: A Comparative Study. Oxford: Hart. Baris Icin Akademisyenler. https://barisicinakademisyenler.net/node/1697, https:// barisicinakademisyenler.net/node/314. BBC Turkish. https://www.bbc.com/turkce/haberler-turkiye-40567898. Accessed on 24 Mar 2020. BBC Turkish. https://www.bbc.com/turkce/haberler/2016/01/160111_erdogan_akademisyen_ aciklama. Accessed on 24 Mar 2020. Bilgrami, Akeel. 2015. Truth, Balance and Freedom. In Who Is Afraid of Academic Freedom? ed. Akeel Bilgrami and Jonathan R. Cole. Columbia University Press. Demir, Y. 2006. Albay Talat Aydemir’in darbe girişimleri. Çağdaş Türkiye Tarihi Araştırmaları Dergisi 12: 155–171. Dworkin, Ronald. 1996. We Need a New Interpretation of Academic Freedom. In Academic Freedom and the Future of the University Lecture Series, May–June. Academe. Ginsberg, Benjamin. 2011. The Fall of the Faculty. New York: Oxford University Press. Göle, N. 2017. Undesirable Public Intellectuals. Globalizations 14: 877–883. https://doi.org/10. 1080/14747731.2017.1362178. Gunduz, M. 2013. Akademiyi anımsamak: anılarda üniversite sorunları ve eleştiriler (Recalling Academy: University Problems and Critics in Memories). Yüksekögretim ve Bilim Dergisi (Journal of Higher Education & Science) 3: 16–26. Gur, Bekir, and Zafer Celik. 2016. Three Decades of the Board of Higher Education of Turkey. International Journal of Educational Reform 25 (3): 299. Inal, K., and G. Akkaymak. 2012. Neoliberal Transformation of Education in Turkey. New York: Palgrave Macmillan. Kararlar Bilgi Bankasi. https://kararlarbilgibankasi.anayasa.gov.tr/BB/2018/17635ç. Kararlar Bilgi Bankasi. http://kararlaryeni.anayasa.gov.tr/Karar/Content/a9052651-20b0-4cddadf9-10e14869c599?excludeGerekce¼False&wordsOnly¼False. Accessed on 2 Oct 2020. Koltutsky, Laura. 2014. Neoliberalism and Intellectual Freedom. In Handbook of Intellectual Freedom, ed. Mark Alfino and Laura Koltutsky. Sacramento: Library Juice Press. Lackey, Jennifer. 2019. Beyond Just Silencing. In Academic Freedom. Oxford: Oxford University Press. Nussbaum, Martha. 2010. Not for Profit-Why Democracy Needs the Humanities. Princeton/Oxford: Princeton University Press. Ördek, A. 2016. Üniversite, Özerklik ve Derin Düşünme Üzerine I: ismail Beşikçi ve Korkut Boratav ile Söyleşi. Mülkiye Dergisi 40: 285–306. Özkirimli, U. 2017. How to Liquidate a People? Academic Freedom in Turkey and Beyond. Globalizations 14: 851–856. https://doi.org/10.1080/14747731.2017.1325171.

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Research Briefing Higher Education (Freedom of Speech) Bill 2021. https://commonslibrary. parliament.uk/research-briefings/cbp-9215/. Accessed on 29 June 2021. Resmi Gazete. https://www.resmigazete.gov.tr/arsiv/10816.pdf. Accessed on 2 Oct 2020. Resmi Gazete. https://www.resmigazete.gov.tr/arsiv/14587.pdf. Accessed on 2 Oct 2020. Said, Edward. 2005. On University. Alif-Journal of Comparative Politics 25: 26–36. Scott-Baumann, Allison. 2017. Ideology, Utopia and Islam on Campus: How to Free Speech a Little from Its Own Terrors. Education, Citizenship and Social Justice 12 (2): 159–176. Simpson, Robert Mark, and Amia Srinivasan. 2019. No Platforming. In Academic Freedom. Oxford: Oxford University Press. Traianou, Anna. 2015. The Erosion of Academic Freedom in UK Higher Education. Ethics in Science and Environmental Politics 15: 39–47.

Chapter 6

Free Speech, Media Freedom and Regulation of Online Speech

Abstract This chapter aims to contemplate to what extent and how the proposed theoretical framework of this book, namely the double-grounded principled approach, can provide a space for media freedom within its conception. To do this, I first examine what media might mean in the contemporary world by focusing on the dimensions of the new media in a highly digitalized world. Second, I analyze how media freedom can be justified through different grounds for free speech such as the discovery of truth, the marketplace of ideas, democracy and equal autonomy. I argue that that the double-grounded principled justification can provide a sound justificatory ground for comprehending what media freedom might mean in the internet age where the distinction between the professional journalist and the citizen blogger is blurred. Lastly, I examine certain cases of the regulation of online speech in the UK and in Turkey respectively in order to assess how the proposed theoretical framework of this book can guide us normatively on the limits of online free speech. Keywords Free speech · Media freedom · Online speech · Internet Referral Units (IRUs) · Twitter ban · YouTube ban · Wikipedia ban · Internet censorship

Chapter 5 and this chapter of this book are devoted to two topics; academic freedom and media freedom respectively. These topics have been chosen in order to test whether the double-grounded principled approach can generate separate frameworks for each of these topics from within its theoretical foundation. In Chap. 5, I argued that academic freedom requires a justification which integrates discovery of truth into the double-grounded principled conception of free speech. In line with this, I contended that, the two pilars of the double-grounded principled approach—the justifications of democratic participation and equal autonomy—have to be complemented with the justification of discovery of truth since academia as an institution has a particular function of knowledge production. In this chapter, I first examine how media freedom is justifiable from the perpective of the free speech justifications and the dimensions of the relation between media freedom and the limits of free speech as such. I develop the argument that the double-grounded principled conception of free speech is able to provide a © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 D. Kabasakal Badamchi, Dimensions of Free Speech, Philosophy and Politics Critical Explorations 19, https://doi.org/10.1007/978-3-030-88319-5_6

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justification to media freedom from a non-instrumental basis: democratic participation recognizes both the obstacles of power and opportunities of democratic inclusion and equal autonomy provides a both speaker and listener based foundation for free speech. That is to say that these two foundations capture the meaning and significance of media freedom as such, especially in the conditions of a contemporary digital world. In line with the above, I subsequently intend to focus on online speech as part of media freedom and analyze the regulation of it by concentrating particularly on the United Kingdom and Turkey. The regulation of online speech is limited in focus: Internet Referral Units in the UK and censorship of certain online communication domains such as Youtube, Wikipedia and Twitter in Turkey. Below, I start by debating the conceptual boundaries of ‘media in the contemporary world. Secondly, I discuss the possible ways to justify media freedom and the relation between media freedom and free speech in general. Finally, I critically examine certain practices of regulation of online speech in the UK and Turkey.

6.1 6.1.1

Media, New Media and Free Speech The Concept of Media in the Contemporary World

The media refers to the means of communication that address a mass audience including the activities of publishing, broadcasting and the internet. Etymologically, it is derived from the Latin word ‘medium’, which signifies a middle ground. In this sense, essentially, the media (a plural form of medium) as a concept points to public grounds of mass communication. As Potter states “ “mass communication” and “mass media” have been applied to identify a particular sub-field of study within the broader field of communication, such that it focuses on communication that is mediated in some way and thus distinguishing it from other forms of communication such as interpersonal or organizational.” (Potter 2013, 3).1 Mass media became a popular term in North America and the United Kingdom after the 1960s; unsurprisingly during a period where TV as well as news publishing were popular means of mass communication. In other words, technological advancements had a positive impact on the possibility of reaching out publicly to larger numbers of people, which then affected our perception and language about the way we communicated.2

1

For a detailed analytical debate regarding the conceptual ambugities around the definitions of ‘mass media’, see Potter, W. J. (2013). Synthesizing a working definition of “mass” media. Review of Communication Research, 1, 1–30. https://doi.org/10.12840/issn.2255-4165_2013_01.01_001. 2 It is significant to note here that I do not wish to argue that it was the invention of TV on its own that caused a change in socio-historical human consciousness. As Raymond Williams rightly reminds us; social and historical changes do not happen only as a result of technological developments. Rather, it is usually a dialectical and relational interaction between the life of humans as social and historical beings and development of technology that brings a transformation in the mode

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With the injection of the internet in our lives, the scale, scope and speed of the dissemination of information and communication enlarged with an immense measure. Due to the impact of the internet, media in the traditional sense has no longer remained as the only instrument of mass communication. Put precisely, each and every person potentially has gained a capacity to reach out to others and even large numbers of people through the means of the internet and digital realm. This transformation of the media is undeniable and undoubtedly, it has also altered our previous conceptions of media that we used to adhere to. Given this, it is realistic and true to the conditions of the contemporary world to define media not through the professional title and education but through the function of the person or the institution. In this regard, Jan Oster writes, “. . . if a person or institution contributes to matters of public interest in accordance with certain standards of conduct, then they are to be conceived of as media and should enjoy special privileges.” (Oster 2013, 58). In a world of cyber public spaces where we have bloggers, You Tubers, online news channels and agencies, e-books, e-articles and social media as realms of public speaking, Oster’s proposal captures the nature of the new media of the internet age properly. Recognizing the transformation of the media poses significant questions in terms of media freedom. How can one make sense of the transformation of the media in terms of its impacts on free speech? Shall we celebrate it as an eventual democratic opening up of the media space to include the ones that are wishing to be heard? Shall we remain skeptical of its democratic inclusionary potential by addressing the ongoing inequality of power in owning the means of mass communication? How is our conception of regulation of media freedom to be shaped by this transformation? It seems it is not feasible to answer such questions from an either/or approach but rather one needs to work on a mediated ground that takes into account many different dimensions of the phenomenon. That is to say, extreme affirmation as well as extreme skepticism might blur our vision of contemporary reality and also limit our hopeful projections about the future of media freedom. Since the first introduction of the internet in our lives, we have had a considerable opportunity to observe the actual impact of the internet on democratic activity and free speech. That is to say, we have reasons to be both skeptical and optimistic about the digital/online publics as spaces of free expression. Cass Sunstein is one of the scholars who skeptically questioned the deliberative democratic potential of the internet in his Republic.com. As a thinker who is greatly concerned about the relation between free speech and the deliberative activity of citizens, he argues that the internet is mostly encouraging enclave deliberation where people talk to people who think in a similar way (Sunstein 2009, 2). For him, through the internet, people tend to find others who are like-minded to engage in dialogue rather than choosing to

of our living. Please refer to his Television: Technology and Cultural Form, London (New York: Routledge, 2003). For a Marxist analysis of the relation between mass communication tools as productive forces and relations of production, see Wayne, M. Marxism and media studies: Key concepts and contemporary trends (Pluto Press, 2003).

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be challenged by opposing views. In other words, the internet facilitates deliberative enclaves where people remain epistemologically and morally unchallenged, which is an obstacle in front of true and open deliberative communication. Sunstein does not suggest unlimited filtering/censorship by drawing our attention to the potential obstacles to democratic deliberation that might be generated by the internet. He is not in favor of entirely unregulated online speech either. I think what he means can be captured better by focusing on the following statements from Republic.com: For citizens in a republic, freedom requires exposure to a diverse set of topics and opinions. I have not suggested, and do not believe, that people should be forced to read and view materials that they abhor. But I do contend that a democratic polity, acting through democratic organs, tries to promote freedom, not simply by respecting consumer sovereignty, but by creating a system of communication that promotes exposure to a wide range of issues and views. (Sunstein 2009, 5)

It is the duty of the democratic institutions in a society not to impose any particular worldview on its citizens and respect their autonomy but at the same time, democratic organs should facilitate the means and conditions of democratic deliberation where citizens can be exposed to various issues and views. Jack Balkin addresses both the positive and negative impacts of the digital revolution on democratic societies. Thus, he asserts that “the social contradiction of the digital age is that the new information technologies simultaneously create new forms of freedom and cultural participation on the one hand, and, on the other hand, new opportunities for profits and property accumulation that can only be achieved through shutting down or circumscribing the exercise of that freedom and participation.” (Balkin 2004, 15). On the one hand, the internet democratized the public realm through dispersing the means of information and dissemination of information among the many rather than a group of elites like in the times of traditional mass media. Certainly, this phenomenon created democratic spaces where each of the participants could find ways to express their opinions and identities to generate new common meanings. However, this phenomenon also opened the door to the generation of new ways of power concentration in the hands of media corporations. For instance, “intellectual property and freedom of speech have been reconceptualized to defend capital investments by media corporations.” (Balkin 2004, 24). For him, this reconceptualization is an attempt of media corporations to defend their self-interest in a changing political economy.3

3

In a sense, here Balkin addresses the structural transformation of the digital public space. In paralell, I would like to emphasize that we witness this tranformation very acutely in the realm of social media. In the case of the social media, we observe the blurring of the line between the public and private. Private companies such as Facebook, Youtube etc. provide a public space for individuals to express their opinions. This has generated new problems such as the gathering of private information about individuals and the limits of speech in social media- i.e. “the community rules” of each platform. I would like to thank to one of the anonymous reviewers of this book for bringing this to my attention.

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Given this diagnosis, Balkin criticizes Sunteinian argument—progressivist arguments in Balkin’s terminology—for not seeing the reality of the digital world. He claims that progressivist arguments were a response to the danger that was posed by the mass media to democracy in order to limit and contain the power of the mass media elites (Balkin 2004, 32). That is why they emerged during the popular era of the traditional mass media in the twenty century. They prioritized public political speech rather than developing an interest in popular culture and other types of speech in order to find ways to secure democratic deliberation and participation of citizens against the corporate media elites. Balkin suggests that progressivists such as Sunstein cannot fully grasp the potentials and opportunities of a contemporary digital world. As observed above, Balkin addresses both the positive and negative impacts of the internet on free speech and democracy and unlike Sunstein, he is not as pessimistic on the issue. He suggests that the democratization of speech in the online world has brought new opportunities of expression in front of people, not only about political speech but also about popular and cultural speech (Balkin 2004, 34). That is to say, the opening generated by the internet might facilitate the conditions for the development of a democratic culture that affirms free speech; a culture which includes deliberation but not limited to deliberation, a culture which involves cultural participation, self-formation, reading, writing, consumption, production. I agree with Balkin that we have reasons for both being positive and pessimistic about the internet’s impact on free speech and I believe some of his criticisms of a Sunsteinian view are sound. However, I still do think that we have good reasons for insisting on the importance of political speech and deliberation even under the conditions of a digital age. Without a democratic institutional background, most of the freedoms that come with the internet might not be practiced fully by ordinary citizens. We know that tyrannical governments in different parts of the world have blocked internet access inside their countries in times of social and political upheaval. For example, in Iran, during the popular protests against the rise of oil prices in November 2019, the state blocked the internet access fully for a few days and limited and slowed down the access for many more following days. Such occasions demonstrate that the internet could be utilized as a democratic means of deliberation by citizens in democratic systems, and at times, even in non-democratic regimes, but it is the democratic political setting that guarantees the political deliberation and participation of citizens rather than the mere presence of the internet.

6.1.2

Justifying Media Freedom and Free Speech

So far, I have discussed what media might mean in the contemporary world and how we can make sense of new media in relation to its potential impact on free speech and democratic participation. In this section, I intend to discuss media freedom in relation to free speech. To do this, I focus on possible justifications for media

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freedom in the contemporary world and argue that the double-grounded principled justification provides a sound justificatory ground for comprehending what media freedom might mean in the internet age. That is to say, the double-grounded principled justification is able to incorporate media freedom into its framework on a stronger ground when compared to other alternatives. The distinction between institutional/professional media and citizens’ activities in the realm of media has been blurred for the last couple of decades. It is very likely that we will be facing the ongoing intermingling of the requirements of media freedom and free speech due to the relative democratization of the realm of media through the internet. In the previous section, as we debated, the opening up of the space of media to ordinary people globally does not mean that we reached a level of full democratic participation in the realm of media since inequalities of power in reaching and influencing others still remain. Nevertheless, the factual possibility of every person acting as an agent of media through blogging, YouTubing, writing on social media etc. seems to be a pressing phenomenon to consider the relationship between media freedom and free speech. It is generally accepted that media has specific privileges due to its function in society; to sustain a democratic polity and provide the public audience with the information that is essential for discovering the truth.4 These functions and therefore, the special status of the media, can be framed in terms of two major justifications for free speech; namely the argument from democracy and the argument from truth or the ‘marketplace of ideas’ theory (Oster 2013, 69). Both justifications complement each other in identifying the function of the media as an institution in society and in this sense, they treat the media as an instrument to sustain democracy and reach the truth. However, I intend to argue that there might be a space for a non-instrumental principled justification for media freedom in the contemporary world where the distinction between the professional journalist and the citizen blogger is blurred and we can contemplate on this space through the double-grounded principled justification for free speech which has been developed throughout this book so far. A non-instrumental principled justification for media freedom would require grounding media freedom as an integral component of a free speech argument/justification rather than considering media freedom merely through its external function for the exercise of free speech. First, I intend to demonstrate that through the argument from democratic participation, we can contemplate a place for a principled justification for media freedom. The argument from democracy as a general free speech theory considers free speech as an essential constitutive component of democratic deliberation.5 In this sense, free See Jan Oster, “Theory and Doctrine of Media Freedom as a Legal Concept”, J of Media L, 5:1, 20013, 57 and Andras Koltay, New Media and Freedom of Expression- Rethinking the Constitutional Foundations of the Public Sphere (Oxford: Hart Publishing, 2019). 5 See Meiklejohn and Sunstein as two major representatives of the democratic participation argument for free speech. Meiklejohn, Alexander. ‘The First Amendment is an Absolute’, The Supreme Court Review, 1961, 245–66., Sunstein, Cass R. Democracy and the Problem of Free Speech (New York: Free Press, 1995). 4

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speech is not a principle that is external to democratic participation but rather, it is one of the conditions that make democratic participation possible in the first place. In other words, it provides a principled justification for the person’s right to free speech. Persons should be able to speak or express themselves freely without an external imposition of opinion to be able to participate in the public realm/s. In the period of traditional mass media, what we used to understand from media freedom was the freedom of the journalists to write, publish and talk freely with public concern and responsibility and to sustain certain privileges in relation to performing their profession.6 This has been significant to facilitate the conditions of free speech and democratic participation through the dissemination of information which is necessary for citizens to develop their judgments on public matters. This understanding of media freedom is still essential for democracy and free speech. However, there has been an opportunity in the last few decades especially through the public spaces on the internet that ordinary citizens—not necessarily journalists by profession—can perform journalistic actions such as publishing and speaking to a large audience with public concern.7 In other words, we have started to understand media freedom as a right of the citizens/persons who are public speakers, just like the right to free speech and democratic participation. A blogger or an individual broadcaster on a YouTube channel can claim a right to speak and post freely since censorship of their opinions would prevent them from exercising their rights to media freedom as well as democratic participation and free speech. Given the above-mentioned latest transformation of the media, we can think of a space where media freedom is no longer the right of only a group of professional publishers and broadcasters. I think, it is this quality that allows us to contemplate the conditions of a principled justification for media freedom within the theory of democracy. As long as media freedom is a free speech right, it is a constitutive component of democratic participation too. This consideration is a principled ground for media freedom because it treats media freedom, not as an external function/ means but rather, an inherent feature of what a democratic deliberation would amount to. In other words, democratic participation in the cyberspace can only be possible with the presence of media freedom and it is not just because media freedom

6

These privileges put states under certain obligations to protect journalists. For instance, Oster describes the content of such privileges by referring to various court jurisdictions: “Journalists cannot be compelled to testify about confidential information or sources, even if material was obtained illegally, and they are exempt from certain data protection and copyright provisions.In addition, states are under a special obligation to protect the media bysafeguarding media pluralism, byprotecting journalists from acts of violence as they carry out their journalistic work, and byprotecting them from undue influence byfinancially powerful groups or the government. Finally, the media is entitled to privileged access to government information and especially press conferences.” (Oster 2013, 61). 7 I do not claim every person who does blogging or work as freelance is a journalist but there is at least a good amount of people in the world who communicate with journalistic and public aims on the internet. Here, I share the definition of Oster in defining the boundaries of journalism not through graduation title but through the nature of the journalistic activity; communication with a public concern. See Oster 2013.

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has functional importance for democracy but on top of this, it is because media freedom has become a constitutive element of democratic participation in cyberspace. Secondly, the equal autonomy argument for free speech provides us a principled ground for media freedom too conditioned with the proviso that the speaker writes for journalistic aims to contribute to democratic debate. As we have observed in detail in Chap. 4, the equal autonomy argument bases its claim for free speech on the equal capacity of each and every person to choose and follow their own conception of the good freely, without an external imposition or intervention from the political authority. In this sense, the autonomy argument is founded on both speaker and listener based rights to free speech. Dworkin emphasized the equal respect that the State should demonstrate towards every person by refraining from imposing its own view on persons since persons are equally autonomous to choose and live according to what they think is right for themselves (Dworkin 1981). J. S. Mill, by emphasizing the right to be justified in one’s opinion in On Liberty, not only argued for the importance of free speech for the discovery of truth but also for a principled ground for free speech which focuses on the listener who is required to listen, hear and read freely to act autonomously (Mill 1986). And finally, we mentioned Scanlon who argued that individuals have a right to hear and evaluate other’s speech freely to be able to choose and act autonomously (Scanlon 1972). Upon this background that emphasizes the right to free speech of the listeners as well as speakers, we can contemplate that there is a space for a principled ground for media freedom through an equal autonomy argument. Listeners have a right to hear, listen, read and comment freely on the speeches of others and this is a requirement of their equal autonomy. In this manner, media freedom provides the speakers and listeners the conditions to exercise their autonomy. On this view, I can exercise my media freedom both as a speaker and a listener since it is an integral part of my capacity of equal autonomy. For example, let’s say I have a YouTube channel through which I reach hundreds of thousands of people every day. Given that I broadcast with adequate diligence and public responsibility, censorship of my channel by the state violates my right to exercise my autonomous capacity of living on the basis of my chosen conception of the good. In addition, censorship of other channels without any justification would violate my right to free speech as a listener who is required to hear various different opinions in order to be justified in my own opinion to follow an authentic good which is a choice of my own. It should have been obvious that my intention is far from claiming that only democratic participation and equal autonomy arguments can provide justifications for media freedom. My intention is to demonstrate the dimensions of a non-instrumental principled ground for media freedom in the contemporary world and thus, I limited my scope with democratic participation and equal autonomy. Discovery of truth or the marketplace of ideas argument can provide some justification for media freedom too at least on consequentialist grounds. The classic Millian version of the discovery of truth argument focuses on the function of media in informing people on different opinions and facts regarding public matters; which is important for social progress. However, we should be cautious of the notion of the

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truth. We live in a world marked by a plurality of truths and that the idea of universal truth is a controversial idea in an age of hyperpluralism that considers various truth claims as equally legitimate as long as they are reasonable to a certain extent to be included in the democratic stability.8 However, we can still make use of the marketplace of ideas argument with a proviso to recognize the impossibility of reaching a universal truth that can be imposed on every person. This argument would emphasize the importance of the plurality of opinions and the role of media to provide these opinions freely to the public’s attention, not to discover truth but to contribute to the exercise of free speech and democratic participation rights of citizens in an informed manner. Moreover, as Oster mentions, the marketplace of ideas “justifies requiring the media to abide by certain standards of conduct when gathering, editing and disseminating information and ideas.” (Oster 2013, 71–72). In other words, the media can contribute to the marketplace of ideas if it acts with public responsibility to verify information before publishing it, to provide reliable information on an accurate factual basis. So far, I have claimed that through the arguments of democratic participation and equal autonomy, we can contemplate the conditions of a space for a strong principled justification for media freedom. This allows us to argue that a double-grounded principled approach to free speech, as a revised articulation of justifications of democratic participation and equal autonomy, can accommodate media freedom as an integral part of its foundation. Media freedom, both as a constitutive component of democratic participation and a requirement of equal autonomy of speakers and listeners can be regarded as a foundational feature of a double-grounded principled approach to free speech. Through the double-grounded principled approach, media freedom is not only appreciated for its quality of being an integral component of democratic participation but also for the importance of free speech as such. Media freedom as a free speech exercise is important as a matter of principle because it can be regarded as a requirement of the exercise of equal autonomy of the citizens. In other words, citizens exercise their equal autonomy through media freedom and vice versa as long as they act as citizen journalists. Not all citizens consider themselves as journalists and act with the responsibility of a professional journalist but for the ones who are and do so, speaking freely is both a requirement of media freedom and equal autonomy. Furthermore, citizens, who may or may not be journalists, need to hear all types of information and opinions in order to be able to exercise their equal autonomy fully and without media freedom, this is just not possible. Media freedom as a right of the citizen—as a speaker and listener—is a right to free speech that calls for protection of certain types of speech in society and this aspect of media freedom is in line with the democratic participation element of the

8

See Alessandro Ferrara, Alessandro Ferrara, Democratic Horizon (New York: Cambridge University Press, 2014), pp. 88–109. Ferrara discusses the meaning and particularity of contemporary pluralism as “hyperpluralism” and its implications for the theory of democratic stability.

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double-grounded principled approach to free speech. Media freedom asks for the protection of speech that aims to contribute to public debate and opinion. The democracy argument that has been developed in Chap. 4 prioritizes speech that aims to contribute to public deliberation as well. In this sense, media freedom is accommodated in the double-grounded principled approach through the categorization of public political speech as a protected speech.9 As mentioned before, recognizing that media freedom has become a right of the citizen journalist does not mean to give in to the idea that we have gotten rid of the power hierarchies in the realm of communication. The double-grounded principled approach, by addressing the power dimension in relation to free speech, helps us think over the obstacles in the way of reaching information and exercising media freedom. As argued in Chap. 4, grounds of free speech have to consider the relevance of power hierarchies in determining who is allowed to speak, who is heard much and best and how the conditions of free speech are shaped through the power imbalances in society. In this manner, the double-grounded principled approach to free speech recognizes that the exercise of the right of media freedom might be influenced by structural power dynamics. For instance, powerful media corporations can still reach a wider audience easily, as compared to single individuals, by using their technological and logistical facilities which allow them to have a significant impact on how people view and shape their opinions. The space in the new media is not utilized equally by all actors and therefore, it makes sense to view media freedom as a right of persons rather than only institutions.

6.2

Media Freedom and Regulation of Online Speech in the United Kingdom

Above, I laid out the normative features of the debate on media freedom and its relation to free speech. In line with this, I analyzed different arguments for media freedom and the ways in which media freedom can be incorporated into the framework of the double-grounded principled approach to free speech. In this section, I aim to focus on the regulation of online speech in media in the United Kingdom. In particular, I investigate to what extent the modus operandi of the practice of Internet Referral Units in the UK is justifiable on moral grounds; especially concerning the arguments for media freedom. Moreover, I aim to assess how the double-grounded principled approach to free speech might guide us on the practice of the ‘internet referral units’ from a moral point of view.

9

Here, to recall, what I mean by political speech is speech that aims to contribute to public deliberation. Public deliberation procedurally requires the treatment of every person as free and equal and speech that aims to contribute to public deliberation should manifest this principle. This is a procedural limit on what counts as political speech and that political speech is not defined through any kind of content/substance that suggests a definitional scope.

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The idea behind the Internet Referral Units is to tackle the speech that encourages terrorism and violence. Given this, one may wonder why this is being discussed under the title of media freedom but not hate speech. The reason is that the encouragement of terrorism is a distinct crime defined by a specific Terrorism Act in the UK which targets the media in its general scope. Moreover, the debate on Internet Referral Units is significant in terms of the limits of media freedom and free speech. In other words, the boundaries of speech that contribute to public deliberation and speech that encourages terrorist actions might not be always clear. Therefore, it is vital to discuss the impact of the practice of the Internet Referral Units in relation to media freedom by critically analyzing its foundations and modus operandi as a requirement of a democracy argument for free speech. Regulation of the internet has been debated a lot in the UK in the last few years even though it has been widely regulated through default filtering by the internet service providers (ISPs) and under certain legislation schemes such as Digital Economy Act 2017. In 2019, the government initiated an action plan called the Online Harms White Paper in an attempt to appoint a regulatory body which is responsible for implementing, overseeing and enforcing a new regulatory framework which aims to impose a duty of care on companies to protect the users from harmful and unlawful digital content.10 The draft Online Safety Bill that gives effect to the mentioned policy approach was published on 12 May 2021.11 The Bill aims to assign repsonsibility to online platforms to take action against illegal and legal but harmful content and punish the platforms which fail to do so. This move by the UK government parallels practices of regulating speech on social media platforms in European Union countries such as Germany—the pioneer example. Certainly, it is worth discussing various dimensions of this latest move in terms of free speech rights and media freedom. However, it must be evident to the reader by now that it is beyond the scope of this section of the book to examine and evaluate the whole dimensions of internet regulation in the UK. Rather, I limit my analysis to examining the regulation of online speech on the basis of censoring extremism by way of focusing on a specific practice, censorship by the Internet Referral Units, which is often neglected in the debate on censorship in online media, in order to interrogate the scope of ‘tolerable’ public political speech from a normative point of view. Internet Referral Units deserve peculiar attention since they potentially draw the boundaries of publicly tolerable speech through addressing the ‘extreme’ and “unacceptable’ speech in the cyber world. They define the limits of free speech on the internet, particularly through private content regulation and extra-legal procedures. Given this, it is important to ask the question whether we can justify the practices of You may refer to the following link to see the details of the first consultation results and executive summary regarding the new plan of the government. https://www.gov.uk/government/ consultations/online-harms-white-paper/public-feedback/online-harms-white-paper-initial-consulta tion-response#executive-summary (Accessed on 21 April 2020). 11 The Draft Online Safety Bill can be reached through the link: https://assets.publishing.service. gov.uk/government/uploads/system/uploads/attachment_data/file/985033/Draft_Online_Safety_ Bill_Bookmarked.pdf (accessed on 29 June 2021). 10

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regulation and censorship conducted by these institutions on a moral ground and if so, how. Analysis of the modus operandi of the Internet Referral Units in general, and in the UK in particular, can provide us the relevant tools to reflect on what free public speech in online media might mean nowadays. The Counter-terrorism Internet Referral Unit (CTIRU) was created in the UK in 2010 to coordinate and execute the terrorist content takedown notices on the internet. However, the political context that led to the institution of this unit dates back to the July 2005 London Bombings. The UK Terrorism Act, enacted in 2006 as a response to the London Bombings, has provided a pragmatic foundation, if not a legal one, for both the creation and conduct of the CTIRU. Initially, the CTIRU depended on the language of the 2006 Terrorism Act regarding the identification and filtering terrorist content. In 2015, with the Counter-terrorism and Security Act and the “Prevent Duty Guidence” issued by the Home Office, the reach of the CITRU has expanded. Sections 1 and 2 of the Terrorism Act of 2006 state the criminal activities that include encouragement of terrorism and dissemination of terrorist propaganda.12 Sections 3 and 4 apply sections 1 and 2 to activities on the internet through establishing a notice and takedown scheme. This scheme allows the UK police to notify the person who violates sections 1 and 2 and to hold them liable for endorsing the material if they do not take it down whithin the two days of notification. CTIRU was created initially to coordinate the execution of voluntary and section 3 takedown notices (Chang 2018, 128). The Prevent Duty Guidence issued by the Home Office in 2015 required public institutions in the field of health, education and local authorities to have “due regard to the need to prevent people from being drawn into terrorism” while exercising their functions.13 Together with the Prevent Duty, the Department of Education required from all schools and registered childcare providers to purchase web-filtering software that includes the CTIRU filtering list, have expanded the application of the CTIRU widely (Chang 2018, 129). Having described the background of the CTIRU above, I now concentrate on how the CTIRU works in terms of regulating/censoring online speech and then focus on the language that defines ‘extremist speech’ in the Terrorism Act 2006, CounterTerorism and Security Act 2015 and “Prevent Duty Guidence”. I believe that critically analyzing the language of the mentioned acts allows us to reflect on the ways we can define extremist speech and the impacts of these ways on the scope of ‘tolerable’ political speech in online media. The CTIRU refers content that it identifies as breaching the UK legislation on terrorism and security to ICT companies (Chang 2018, 129). It may receive referrals from law enforcement partners and public through its own online referral system but “the vast majority of referrals are generated by CTIRU officers searching the internet for material.” (Chang 2018, 129). It also mainstains a list of websites hosted outside of the UK, each of which are considered to be liable under the provisions of the

12

Terrorism Act 2006, c.11, see sections 1,2,3 and 4. Prevent Duty Guidance, see “A. Status and Scope of the Duty” and Counter-Terorism and Security Act 2015, section 26.

13

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Terrorism Act 2006 in the absence of any statutory defenses. This list is provided to web-filtering companies to block such websites on the public space such as public libraries, schools and childcare facilities. UK’s major internet service providers also collaborate in filtering such materials from the web in order to protect the young people and children from their reach. Given that terrorism poses a considerable threat to humanity, it is a duty of states to find ways to prevent and deal with such a universal evil. The establishment of CTIRU in the UK and internet referral units in other European countries are reactions to deal with the rising and alarming phenomenon of terrorism which operates by the dissemination of ideas through the internet. Nevertheless, the way internet referral units operate is in need of reconsideration given that they operate independently on an extra-legal terrain. The requirement of detecting terrorist content efficiently and as fast as possible should not blur our vision and understanding of truth and justice. In other words, it is a highly valuable and pressing endeavour to contemplate how a democratic polity, which is guided by the rule of law tackle terrorist content on the internet. Actually, the modus operandi of the internet referral units has been criticized by civil society institutions such as Access Now, the American Civil Liberties Union (ACLU), the Centre for Democracy and Technology (CDT), Committee to Protect Journalists (CPJ) and European Digital Rights (EDRi). (Chang 2018, 143–144). Both Access Now and CDT criticize the Internet Referral Units for their use of the extra-legal means and privatization of censorship to detect and take down the illegal content.14 Europol’s Internet Referral Unit, which was created in 2015, in line with the model of the UK’s CTIRU, is criticized for relegating the identification of illegality and its prosecution to private parties and bypassing the courts and other judicial mechanisms. In a parallel manner, the UK’s CTIRU is questioned for mandating private companies for detecting the illegal and terrorist content by relying on these companies’own definitions of extremist and dangerous speech, which is unacceptable from the point of view of international human rights law.15 Furthermore, as Courtney Radsh from the Committe to Protect Journalists rightly warns, private censorship of content is problematic in democratic countries where there is rule of law but it is even more problematic due to the abuse of these measures in countries where there is no protection for human rights.16 Examples such as China, Egypt, Turkey and elsewhere support this diagnosis since authoritarian governments

14 See https://www.accessnow.org/europols-internet-referral-unit-risks-harming-rights-isolatingextremists/ on the webpage of Access Now and https://cdt.org/insights/pressuring-platforms-tocensor-content-is-wrong-approach-to-combatting-terrorism/ on the webpage of CDT. (Accessed both on 23 January 2020). 15 For similar criticisms, refer to https://edri.org/ and https://www.aclu.org/issues/free-speech/ internet-speech. It is also significant to note that the UK left EU officially on 3 January 2020 as a result of the Brexit process. However, it is a high possibility that EU’s Internet Referral Unit and the CTIRU in the UK will want to continue to cooperate on the issue of terrorist online content. 16 https://cpj.org/blog/2016/01/one-year-after-charlie-hebdo-will-press-freedom-be.php (Accessed on 23 January 2020).

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tend to utilize these measures very efficiently to censor what is not in line with their own belief system. The CTIRUs’decision to give the task of filtering the terrorist content to the private communication companies raises doubts concering the accountability and transperancy of their modus operandi. The private companies’ definition of extremism and violence might not always match up with the public intuition: they might act too strict and limiting regarding the speech that might be tolerable from a state’s point of view or vice versa. Moreover, it is a requirement of living in a democratic polity guided by rule of law to know the legal basis on which certain speech is censored. In practice, it has been common that the owners of the censored contents were not informed before it was taken down. In addition, the staffing and budget of the CTIRU are secret in the UK although the UK Government has regularly aggregated statistics on the amount of content flagged for removal in response to parliamentary questions (Chang 2018, 130). Given these criticisms, I think it can be claimed that; as long as there is no transparency regarding the censorship and regulation of online speech, the practice of the Internet Referral Units do not comply with basic human rights law. There is a strong reason for the argument for free speech to prioritize public political speech as protected speech because public political speech is the core medium and activity of democratic participation. As mentioned before, the doublegrounded principled theory defines the scope of public political speech as speech that aims to contribute to public deliberation. Seen from this angle, terrorist speech should not be endorsed as public political speech since it does not aim to contribute to democratic deliberation but contrarily, aims to destroy the realm of deliberation. This inference should be correct as long as we have a definition of terrorist speech which has solidly defined boundaries. However, the wording of the relevant Acts that inspired the establishment and modus operandi of the CTIRU in the UK contain the potential for an overbroad and ambiguous interpretation of what might be described as unlawful and extremist speech. The Terrorism Act 2006, as it is mentioned in Part 1 Article 2 of the Act, applies to the offenses that directly or indirectly encourage or induce the commission, preparation and instigation of acts of terrorism. Moreover, it applies to the publications that are reckless “as to whether members of the public will be directly or indirectly encouraged. . . to commit, prepare or instigate such acts or offenses”.17 In Part 1 Article 3, indirect encouragement is defined as glorification of the commission or preparation—whether in the past, the future or generally—of such acts or offences. It can be claimed that the definition of the encouragement of terrorism is over-broad, but it is the indirect encouragement aspect of the definition, particularly the concept of glorification, is problematic both with respect to freedom of expression and legality (Murray 2009, 343). In the absence of inducing violence, a variety of expressions including factual statements to inform the public, research-based projections and some others such as expression of sympathy or antipathy which

17

See UK Terrorism Act 2006, Part 1.

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can be regarded as free speech might be labeled as the glorification of extremism. Let me give you an example. In January 2020, it has been brought to the attention of the public by the newspaper The Guardian that the police force in England has added the Extinction Rebellion to its lists of extremist groups in a counter-terrorism guide as part of the Prevent Strategy.18 After public reactions and criticisms, the Police made conflicting statements to justify the action as an attempt to inform the frontline officers when dealing with security issues.19 However, this demonstrated that it is possible to treat a non-violent environmentalist group as a dangerous extremist association through the language of the counter-terrorism Acts. Let’s say, if I publish an article or a photograph about the Extinction Rebellion on my website to endorse their actions, would I be treated as glorifying an extremist ideology? Where does the boundary lie? As an environmentalist, is my right to free speech not violated? In addition to putting free speech rights in jeopardy, the concept of glorification leads the way to legal ambiguities as well. It is a legal principle that “law must be sufficiently clear as to allow citizens regulate their conduct.” (Murray 2009, 343).20 The glorification clause is not clear enough to guide persons regarding the possible consequences of their actions. As noted by the House of Lords, it seems there can be a wide range of disagreement “between reasonable people as to whether a particular comment is merely an explanation or an expression of understanding or goes further and amounts to encouragement, praise or glorification.” (Murray 2009, 344).21 I think it is important that CTIRU, as an institution guided by the definition of extremism and terrorism in the Acts mentioned above, must be aware of the ambiguous territory it is operating on. That is to say, there is a possibility that some speech which is perfectly tolerable due to its quality of contribution to public political deliberation might be censored or filtered as a result of the overbroad and vague defintion of extremism. It is a requirement of the public good and in the interest of the wellbeing of the people to be both shielded from terrorism and allowed to express themselves freely without resorting to violence as part of their individual autonomous capacity and democratic rights to participate. Before, I have stated that terrorist speech cannot be protected political speech in so far as it does not aim to contribute to public deliberation. However, it seems complicated to have a clear definition of what terrorist speech is. For instance, should we distinguish between radicals and terrorists? As Tufyal Choudhury puts it, The Terrorism Act 2006 “fails to draw a distinction between those who resist oppressive regimes without endangering the lives of innocent civilians and those that indiscriminately kill innocent people.” (Choudhury 2009, 487). In this respect, how do

18

https://www.theguardian.com/environment/2020/jan/19/extinction-rebellion-listed-as-keythreat-by-counter-terror-police (Accessed on 27 January 2020). 19 https://www.bbc.co.uk/news/uk-51157718 (Accessed on 27 January 2020). 20 Regarding this principle, Murray refers to the European Court of Human Rights, Muller and others vs Switzerland, 24 M ay 1988, Application No.10737/84, published in A133, para. 29. 21 Murrey mentions that it is quoted in Fenwick, Helen and Phillipson, Gavin, Media Freedom Under the Human Rights Act (Oxford: Oxford University Press, 2006), 531.

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we draw the line between the two? These are all legitimate questions that are in need of answers but I believe they can have justifiable answers as long as laws aim to delineate the boundaries of terrorism clearly and do not resort to overbroad and overinclusive definitions of encouragement to terrorism. But can some speech that is considered to be encouraging terrorism be regarded as protected speech and if so, on what conditions? For instance, can we identify an expression that calls for ‘occupying’ a park in an urban area to protest the negative impact of the capitalist profit-oriented policies of a government as an encouragement of terrorism? Occupying a public space can be illegal but is it always morally unjustifiable? Moreover, are all types of expressions inviting people for an illegal act necessarily and always morally unjustifiable? It seems to me that the answer lies in the motive of the speech that is in question; i.e. whether the speech aims to contribute to public deliberation or not. In the example that I just mentioned, the political contribution motive is quite apparent and moreover, it does not aim to cause any immediate harm nor does it invite people to act violently. It is important to underline that the double-grounded principled approach differs from a pure autonomy-based claim that was raised by Thomas Scanlon in his A Theory of Freedom of Expression in 1972. To recall, Scanlon supported the view that expressions, regardless of their content, should not be subject to intervention and this is a requirement of the principle of autonomy. In this case, the mere communication of persuasive reasons for action; i.e. the encouragement to rob a bank or another terrorist act, should not be subject to any restrictions since persons need to hear all the opinions without external intervention to form their ideas independently (Scanlon 1972, 212–213). The shortfall of Scanlon’s argument is that it is assumed to be applicable to a whole universe of speech; without the consideration, that different types of speech might require different levels of protection. As I examined in Chap. 4, this is an earlier argument that Scanlon later revised, claiming that there can be a plurality of values of autonomy which could be applicable in free speech considerations (Scanlon 2011, 547). In the same article, he also points out that the interests of the speakers and listeners are significant in the case of political speech and that government intervention damages those interests (Scanlon, 323). We can infer that Scanlon refrains from applying one single autonomy principle to a whole universe of speech and he prioritizes political speech as well. But, where does the encouragement of terrorism stand here? Does the interest of the speaker override the interest of the listeners or vice versa? Which value of autonomy is applicable? I think that in order to answer these questions, Scanlon has to provide us his reasons for the priority of political speech so that he could work out what type of speech should be protected. Nevertheless, as I noted in Chap. 4, his theory is vague on defining the interests of the speakers and listeners in the case of political speech. On a double-grounded principled approach, some speech that might be viewed as encouraging terrorism might be counted as protected political speech but it is impossible to claim the same for all types of general encouragements of terrorism. As I tried to demonstrate, the first condition for speech to be protected is that it should aim to contribute to public deliberation. Secondly, the speech should not aim

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to initiate or incite immediate violence or harm by addressing specific persons, tools or places. In other words, general encouragement of terrorism must be differentiated from incitement to specific acts of violence and harm. It seems some of the speech that belongs to the former category might be regarded as protected political speech under certain conditions. Put more precisely, there can be cases where we must acknowledge the political value of some expressions of general encouragement of terrorism. For instance, many expressions that condemn and criticize capitalism and call for a regime change can be regarded in this category. On the other hand, there can also be situations where the expressions of encouragement do not have an overriding political value that deserves any consideration. It is difficult to come up with an easy formula and in each case, we will have to consider various factors such as time, place and the likely harm associated with the speech. However, it is extremely significant that the laws and regulations aim to define the encouragement of terrorism clearly and with a goal in mind not to chill the free political speech of citizens.

6.3

Media Freedom and Regulation of Online Speech in Turkey

In this section of the chapter, I discuss how online content is regulated in Turkey and to what extent these regulations are in line with media freedom. I aim to examine internet censorship, particularly various occasions of banning of YouTube, Wikipedia and Twitter and focus on the reasons why these censorships are unjustifiable when analyzed from the arguments for media freedom and free speech. This debate allows us to concentrate on the relevance of media freedom in the contexts of authoritarian challenges and the dimensions of the double-grounded principled approach that can guide us normatively to ground the significance of media freedom. Turkey has never been a safe territory for journalists to speak, write and publish freely. Throughout its turbulent history that contains coup d’etats and problematic relationship with democracy, journalists were subjected to various mistreatments such as torture, imprisonment and even death. For the last four years, especially in the period after the failed coup attempt of 15 July 2016,22 with the emergency

22

On 15 July 2016, a coup attempt was initiated by the Gulenist Terrorist organization, which resulted in hundreds of deaths and an emergency decree that lasted for two years which allowed the state to sack thousands of public officers, academics and military personnel with charges of terrorism. The major suspect behind the coup attempt was Fetullah Gulen, a dissident cleric who lives in US and established an undercover organization within the structure of the state to take over the administration of the state. Until couple of years before the coup attempt, Gulen was a close ally of Erdogan in ruling the country; Gulenists were appointed in important job posts in judiciary, military and education. Their organizations in civil society, media and education were supported by the Turkish government until they got into dispute with the ruling party AKP.

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decrees and extra-legal procedures, hundreds of journalists were persecuted, interrogated and jailed. According to a report by the International Press institute, as of December 2019, more than 120 journalists were still in prisons mainly on terrorismrelated charges.23 Moreover, during the two yearlong emergency rule after the coup attempt, hundreds of media institutions such as newspapers, TV channels, magazines and radios were shut down with terrorism related allegations. This also helped president Erdogan and the government to control almost 95% of the media in Turkey, which is now constituted by pro-government TV channels, newspapers and other media. In the previous section, it was mentioned briefly in passing that the extra-legal and private censorship of internet content might be abused to silence the views of the opposition in authoritarian countries where there is no proper rule of law or democratic mechanisms of monitoring the ruling power. For this reason, the presentation of examples such as Internet Referral units as the a legitimate global standard for dealing with the regulation of speech on internet is problematic and even risky from the point of view of democracy and free speech rights at the global level. Turkey has become a country where rule of law has been gradually, and at times quickly, eroded and the media has been dominated by the political views of the ruling party. In this context, regulation and censorship of speech on the internet have also become a matter of efficiency and security rather than free speech rights and democracy. On many occasions such as the prosecutions of journalists, we have witnessed, even the legal mechanisms are highly politicized and under the direct or indirect influence of the ruling power in the absence of a fully independent judiciary.24 Censorship through extra-legal means provides a strong opportunity for the rulers of countries which moved towards an authoritarian direction to very efficiently censor what is against their view. Below, I endeavor to provide certain examples of censorship of the internet in Turkey, which operated on a legal terrain, yet opened the way for fast and efficient censorship and constituted a violation of free speech rights. One of the most well-known and latest examples of the censorship of content on the internet in Turkey was the total blockage of Wikipedia. Access to Wikipedia was banned for more than two years between 29 April 2017 and 15 January 2020, which

23

https://www.reuters.com/article/us-turkey-security-media/more-than-120-journalists-still-jailedin-turkey-international-press-institute-idUSKBN1XT26T (Accessed on 28 Janury 2020). 24 One internationally well-known example of such prosecutions is the prosecution of the 19 journalists of the oppponent Cumhuriyet newspaper, which is know as the Cumhuriyet Gazetesi Davasi in Turkey. The journalists were detained and charged with committing crimes against the constitutional regime on behalf of the terrorist organizations of FETO (The Fetullahist Terrorist Organization) and PKK (Kurdistan Worker’s Party). Throughout the two years period that the journalists were in trial, most of the evidence referred by the public prosecutor as terorist activity were journalistic activities such as news and articles. In September 2019, The high Court of Appeals concluded that the crime attributed to the journalists were baseless and media freedom is essential for democracy. However, the criminal court insisted on the attributed crime in its final judgement in spite of the judgment of the High Court of Appeal. See the following link for a brief history of the trial. https://www.dw.com/en/turkish-court-upholds-sentences-against-cumhuriyet-journalistsdespite-successful-appeal/a-51356461. (Accessed on 29 January 2020).

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included access in all languages. The reason of the ban was, widely shared in the media, was several articles that presented Turkey as a supporter of jihadist Islamist groups in Syria.25 The government referred to the Act 5651 (The Act Regarding the Regulation of the Publications on Internet and Coping with the Crimes that were Committed through Such Publications), which was amended in 2014 to provide more power to the government in the regulation of speech on the internet, as a legal basis for the ban. The Act allows state authorities, the President and ministers, to take down specific content and prohibit access to websites through the direct action of the head of the Institution of Information Technologies and Communication in the situation of emergency regarding national security and public order.26 According to the Act, in the case of technical impossibility of taking down of specific content, the total ban of access can be decided too.27 It is stated that the head of the Institution of Information Technologies and Communication should initiate the ban within four hours after informing the relevant content providers and present the decision of takedown to the judge within twenty hours of the decision. It is also stated that in case the judge does not decide in forty eight hours, the decision will be automatically lifted. Act 5651 provides authorities with the opportunity to take down content and ban websites as quickly as a couple of hours without waiting for the decision of the court. The requirement of the judge’s approval in 24 hours is not functional enough given that the decision must be acted on within four hours. This legal basis that opened the gate to efficient and quick take-down of content by those in political power established a ground for censorship of any online content which is disapproved by the government. The Wikipedia ban was lifted on 15 January 2020 only after the Turkish Constitutional Court’s decision that the ban was unconstitutional and violated the freedom of expression.28 Many websites were banned by emergency government decree during the two year emergency rule declared by Erdogan after the failed coup in 2016. However, Act 5651 created a space for the Presidency and

25 https://www.theatlantic.com/news/archive/2017/04/turkey-blocks-wikipedia/524859/ (Accessed 31 January 2020). 26 The Institution of Information Technologies and Communication was established with the Act 2813. Although it is stated that the institution is autonomous and is not operated by the dictate or order of any other institution, it is heavily dependent on the Presidency for its operation and constitution. The members of the decision committee including the president of the institution are appointed directly by the President of Turkey. If we add to this that the requests for censorship by the President are managed by the head of the institution directly, it should not be so difficult to observe that the institution is dependent on the Presidency on its decisions. For the Act, see https:// www.mevzuat.gov.tr/MevzuatMetin/1.5.2813.pdf. 27 Internet Act 5651, article 8/A, paragraph 1,2,3. https://www.mevzuat.gov.tr/MevzuatMetin/1.5. 5651.pdf. 28 Constitutional Court Decision, Wikimedia Foundation Inc. and others, application number 2017/ 22355, 26.12.2019, see the full decision on https://kararlarbilgibankasi.anayasa.gov.tr/BB/2017/ 22355?KelimeAra%5B%5D¼vikipedi.

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government to ultimately control the regulation of speech on internet both before and after the emergency rule. 29 Further amendments were incorporated in the Internet Act 5651 with the approval of Parliament on 29 July 2020 amidst the criticism that more censorship is being legalized. These latest amendments target the national and international social network providers which have more than one million followers and aim to put them under serious liability through serious financial fines. One of the major changes brought by the latest modification of Act 5651 is that the social network providers should appoint a representative in Turkey in order to answer takedown and restriction of content requests and act in line with the regulations raised in the Act. According to the additional Article 4 (2), if the social network provider does not comply with the requirement of appointing a representative in Turkey within 30 days, it will be fined 10 million Turkish liras and if the non-compliance continues for further 30 days, a fine of 30 million Turkish liras fine will be enacted.30 Besides the financial fines, in the case of not appointing a representative, the social network provider will be prevented from publishing advertisements from Turkish institutions and as a final step, the access to the social network provider’s internet will be restricted up to 90% as a result of a court decision. Moreover, according to Article 4(3) of the amendment, the social network provider has to answer take down requests from individuals within 48 h, either positive or negative but in the case of a negative answer, they must provide a written justification. In line with this, in case that the social network provider fails to reply within 48 h, it will be fined five million Turkish liras. Although the amendments were apparently inspired by the German Act to Improve the Enforcement of Rights on Social Networks (The Network Enforcement Act), there are some differences between the two acts. The German Act requires the companies to reply to the demands regarding “clearly illegal” content within 24 h but in case the illegality of the content is not clear, it provides the companies 7 days to evaluate the situation.31 The Turkish Act does not make a distinction between ‘clearly illegal’ and other content. However, Article 4(8) mentions that in the case of content which is judged to be illegal by the courts, the social network companies should take down the content within 24 h after it receives the information. In case of failure to do so, the social network companies will have to bear the cost of reparations.32 Moreover, the Turkish Act targets the companies which have one million or more followers whereas the German Act targets those which have two 29

For a detailed analysis of the contextual developments that led to the enactment of the code 5651, see Mustafa Akgul and Melih Kirlidog, “Internet Censorship in Turkey”, Internet Policy Review, Vol.4, Issue 2, 2015. 30 https://www.resmigazete.gov.tr/eskiler/2020/07/20200731-1.htm (Accessed 29 September 2020). 31 Article 3.2.(2) of the Act. https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/ Dokumente/NetzDG_engl.pdf?__blob¼publicationFile&v¼2 (Accessed on 29 September 2020). 32 Additional Article 4(8), https://www.resmigazete.gov.tr/eskiler/2020/07/20200731-1.htm (Accessed on 29 September 2020).

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million or more followers. Apart from these, in both Acts, the social network companies are put under the obligation to provide regular statistical reports on takedowns and restrictions of content. Obviously, both Acts are reactions to the increasing numbers of rights violations and hate speech on the internet, especially on social network communities. Nevertheless, in the Turkish case, the context of the lack of an independent media and rule of law opens up a space for more censorship and restrictions on the free expression of opinions. This has been the case already before these latest amendments with the Internet Act 5651 as stated before, and the worry and criticism that these amendments will lead to more censorship and silencing of unfavorable opinions by the government is totally justifiable. Furthermore, even Germany’s Act has been criticized for encouraging companies to censor opinions too due to the steep fines they face in case of a failure to restrict certain content. Indeed, in a way that justifies the worry about the censorship of the internet, the total banning of online social media platforms has been a frequent and systematic choice of the ruling power in Turkey under the conditions of political instability. Twitter has been subjected to several content take-downs and restrictions as well as total bans on and off for more than 6 years. According to Twitter’s transparency records, during the period of January to June 2019, 80% of the global removal requests came from Turkey, Russia and Japan.33 It is stated that 75 legal objections were filed against the 388 court orders in Turkey on the grounds that these orders do not comply with the principle of freedom of speech or freedom of the press; which resulted in the acceptance of only two of the objections on the basis that it would be too disproportionate to require Twitter to withhold whole accounts instead of specific tweets. Twitter has a country-specific withheld content policy, which takes into account the local laws in specific countries. This also raises concerns because a speech identified as violating the local laws in a given country does not make the censorship in question universally acceptable. The first Twitter ban occurred on 21 March 2014, in a climate when several allegations of government corruption were under investigation, 10 days before the municipal elections that would be held in 30 March 2014. In a speech 12 h before the actual ban, Erdogan, prime minister at that time, declared that Turkey would block Twitter and he did not care what the international community would say.34 The Twitter ban was lifted two weeks later, after the Constitutional Court ruled that the ban was against freedom of expression.35 One week after the Twitter ban, access to YouTube was blocked too due to a leaked video of a secret meeting about Syria at the Ministry of Foreign Affairs. The YouTube ban was lifted only a week after the

33

https://transparency.twitter.com/en/removal-requests.html (Accessed 30 January 2020). https://www.bbc.com/turkce/haberler/2014/03/140320_erdogan_twitter (Accessed on 30 January 2020). 35 Yaman Akdeniz and others, application number 2014/3986, 2/4/2014, see the following link for the full decision of the Constitutional Court, https://kararlarbilgibankasi.anayasa.gov.tr/BB/2014/ 3986?KelimeAra%5B%5D¼twitter&KararTarihiBitis¼02%2F04%2F2014. 34

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lift of the Twitter ban. It was clear that the reason for these bans was political and that government wanted to control the information flow concerning the latest allegations of corruption just before the elections. However, Act 5651 provided the authorities the legal, albeit controversial, basis from which they could claim to comply with all the necessary and relevant measures to fight against crimes committed online. One of the longest continued censorships was the total ban on YouTube between 5 May 2008 and 30 October 2010, which lasted more than two years. The decision was based on certain videos that were disrespectful of the legacy of Ataturk, the founder of the Turkish Republic. The ban was lifted only after the videos were taken down, after two and a half years. Several academics, including Serkan Cengiz, Yaman Akdeniz and Kerem Altiparmak had taken the decision of the ban to the European Court of Human Rights, claiming that the YouTube ban was an obstacle to their right to information and also to their academic research. The European Court of Human Rights ruled that the ban was a violation of article 10 of the Convention on Human Rights and therefore a violation of freedom of expression.36 In April 2015, YouTube, Twitter and Facebook were banned altogether due to the availability of a picture of the public prosecutor Kiraz’s hostage in Istanbul’s Caglayan Courthouse.37 Only after the videos were taken down, the Facebook ban was lifted 4 h later and the Twitter and YouTube bans were lifted after 8 h. In the picture in question, there was a gun pointed at the head of the prosecutor by a man who was masked with red fabric. The hostage situation ended with the death of both the prosecutor and the militants who initiated the whole act. The reason provided by the state authorities for the ban was to prevent the propaganda of terrorism, and respect the privacy of the family of the deceased prosecutor.38 Due to the nature of the picture, it was inevitable to question the ethics of showing and disseminating this information. However, the total ban on accessing the three major social media outlets was criticized by the civil society organizations which claimed that the ban was incompatible with the right to information and communication in a democratic society.39 The bans on social media platforms in Turkey mentioned above are obviously part of an authoritarian state policy to silence the opposition. Nevertheless, the censorship of speech, with or without the bans, is practiced by the state in the form of continuous surveillance of online platforms. Social media platforms are far from being the safe spaces where citizens can exercise their rights to free speech. What is spoken and written is always subject to scrutiny and surveillance by the 36

See Cengiz v.Turkey, App. Nos. 48226/10 and 14027/11, 64 (Eur. Ct. H.R. Dec. 1, 2015), https:// hudoc.echr.coe.int/eng#{%22appno%22:[%2214027/11%22],%22itemid%22:[%22001-159188% 22]}. 37 https://www.telegraph.co.uk/news/worldnews/europe/turkey/11518004/Turkey-blocks-accessto-Facebook-Twitter-and-YouTube.html (Accessed on 30 January 2020). 38 https://www.independent.co.uk/news/world/europe/youtube-facebook-and-twitter-blocked-inturkey-over-istanbul-prosecutor-siege-images-10158108.html (Accessed on 31 January 2020). 39 http://www.hurriyet.com.tr/ekonomi/twitter-youtube-ve-facebooka-erisim-engeli-28665837 (Accessed on 31 January 2020).

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state. For instance, almost every day there are several prosecutions in reference to the crime of “insulting the President”. Moreover, there are supporters of the government who are paid to perform cyberstalking, harassment, intimidation and bullying mostly against LGBTQ people, journalists, feminists and Kurds (Parks et al. 2017, 580). In this section, I wanted to be selective and address some of the major well-known cases of internet censorship by the Turkish authorities. I believe this analysis should have helped to elucidate how and through which procedures the censorship of online content in Turkey operates. The power assigned to the President and ministers by Act 5651 to directly ban the content which is considered as threat established a structural pattern of censorship. This power has been systematically used to sustain the authority and privileges of information of the state authorities at the expense of media freedom and citizens’ right to free speech. Freedom of speech and media freedom are essential components of a democratic regime founded on the basic rights and liberties of persons and democratic participation. As a requirement of equal autonomy and democratic participation—as expressed through the double-grounded principled approach—free speech and media freedom constitute the conditions of public deliberation. In contemporary times, the internet has become a significant realm where public deliberation can take place; which is essential for the criticism of the ruling powers. In other words, the internet, especially when functioning as a media institution through websites, news sites, blogs, newspapers and social media can provide means to inform the people with respect to political issues. It is this aspect that makes it important to consider whether the censorship of the internet is justified and to what extent. The bans that aimed to silence the opposition and criticisms of the ruling power are certainly unjustified as in the case of most bans enacted by the Turkish authorities.

6.4

Conclusion

In this chapter, I applied the proposed framework of the book, namely the doublegrounded principled approach, to media freedom. I intended to test to what extent and how the double-grounded principled approach can incorporate a conception of media freedom within its scope. I began the discussion by highlighting the features of what might be called “new media” in a highly digitalized world. I claimed that, the internet has opened up a space which was previously unavailable to ordinary citizens in the realm of media and in this sense, has a democratizing feature. Yet, I argued that internet access alone, without a democratic institutional background, is not a sufficient condition for the exercise of free speech and democratic participation of citizens. Then, I discussed the common justifications for media freedom; media as an instrument for discovery of truth/marketplace of ideas and media as an instrument for democracy and argued that double-grounded principled justification is able to incorporate media freedom into its framework on a stronger ground when compared to these two single-grounded alternatives. On a double-grounded principled

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approach, media freedom is a right of the citizen-journalist as a requirement of both democratic participation and equal autonomy. In other words, it is an integral and constitutive component of both the democratic participation and equal autonomy of citizen-journalists in the global online world. It is only by way of exercising their free speech rights, that persons can participate in public deliberation on the internet, and they are entitled to exercise their free speech rights because they are equally autonomous both as speakers and listeners. In line with this, I emphasized that on a double-grounded principled approach, political speech that aims to contribute to public deliberation in the media has prior protection over other types of speech. I also contended that the marketplace of ideas, although not a strong justification on its own, provides a ground for media freedom as well, since it underlines that the media’s function to to inform citizens is vital for the functioning of democracy. But for the media to perform this function, it has to act with public responsibility to verify information before publishing it, to provide reliable information on an accurate factual basis. Finally, I concentrated on two cases—the UK and Turkey—to analyze certain practices of censorship and regulation of online media and to examine how the proposed theoretical framework of the book can inform and guide us on the issue of the regulation of online speech. In the case of the UK, I focused on a particular practice, that of the CTIRU, established to detect and take down extreme and terrorist speech in online media. In the case of Turkey, I focused particularly on the banning of YouTube, Twitter and Facebook at various times. By referring to the case of the CTIRU in the UK, I emphasized the fact that the laws and regulations should define the encouragement of terrorism clearly, and with a goal in mind not to chill the free political speech of citizens. Furthermore, by referring to the cases of internet censorships in Turkey, I stressed that the bans on social media platforms by Turkish authorities aimed to silence the criticisms of the ruling power and are unjustified because they violated both the democratic participation and free speech rights of citizens.

References Balkin, Jack. 2004. Digital Speech and Democratic Culture: Theory of Freedom of Expression for the Information Society. New York University Law Review 79 (1): 1–58. BBC. https://www.bbc.co.uk/news/uk-51157718. Accessed on 27 Jan 2020. Bilgi Teknolojileri ve Iletisim Kurumunun Kurulusuna Iliskin Kanun (Law regarding the Establishment of The Institution of Information Technologies and Communication). https://www. mevzuat.gov.tr/MevzuatMetin/1.5.2813.pdf. Cengiz v. Turkey, App. Nos. 48226/10 and 14027/11, 64 (Eur. Ct. H.R. Dec. 1, 2015), https:// hudoc.echr.coe.int/eng#{%22appno%22:[%2214027/11%22],%22itemid%22:[%22001159188%22]}. Chang, B. 2018. From Internet Referral Units to International Agreements; Censorship of the Internet by the UK and EU. Columbia Human Rights Law Review 49 (2): 114–212. Choudhury, Tufyal. 2009. The Terrorism Act 2006: Discouriging Terrorism, Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein, 463–487. Oxford University Press.

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Constitutional Court Decision, Wikimedia Foundation Inc. and others, application number 2017/ 22355, 26.12.2019, https://kararlarbilgibankasi.anayasa.gov.tr/BB/2017/22355?KelimeAra% 5B%5D¼vikipedi. Craig, Scott and Llanso, Emma. “Pressing Platforms to Censor Content is Wrong Approach to Combatting Terrorism”. https://cdt.org/insights/pressuring-platforms-to-censor-content-iswrong-approach-to-combatting-terrorism/. Accessed 23 Jan 2020. DW. https://www.dw.com/en/turkish-court-upholds-sentences-against-cumhuriyet-journalistsdespite-successful-appeal/a-51356461. Accessed on 29 Jan 2020. Dworkin, Ronald. 1981. Is there a Right to Pornography? Oxford Journal of Legal Studies 1 (2): 177–212. European Digital Rights. https://edri.org/. Ferrara, Allesandro. 2014. Democratic Horizon, 88–109. New York: Cambridge University Press. German Act to Improve the Enforcement of Rights on Social Networks (The Network Enforcement Act). https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/Dokumente/NetzDG_engl. pdf?__blob¼publicationFile&v¼2. Accessed on 29 Sept 2020. Hurriyet. http://www.hurriyet.com.tr/ekonomi/twitter-youtube-ve-facebooka-erisimengeli-28665837. Accessed on 31 Jan 2020. Independent. https://www.independent.co.uk/news/world/europe/youtube-facebook-and-twitterblocked-in-turkey-over-istanbul-prosecutor-siege-images-10158108.html. Accessed on 31 Jan 2020. Internet Act 5651, article 8/A, paragraph 1, 2, 3. https://www.mevzuat.gov.tr/MevzuatMetin/1.5. 5651.pdf. Internet Speech/American Civil liberties Union. https://www.aclu.org/issues/free-speech/internetspeech. Koltay, Andras. 2019. New Media and Freedom of Expression- Rethinking the Constitutional Foundations of the Public Sphere. Oxford: Hart Publishing. Krahulcova, Lucie. “Europol’s Internet Referral Unit Risks Harming Rights Feeding Extremism”. https://www.accessnow.org/europols-internet-referral-unit-risks-harming-rights-isolatingextremists/. Accessed on 23 Jan 2020. Meiklejohn, Alexander. 1961. The First Amendment is an Absolute. The Supreme Court Review: 245–266. Mill, John Stuart. 1986. On Liberty. New York: Prometheus Books. Murray, Darragh. 2009. Freedom of Expression, Counter-Terrosim, and the Internet in the Light of the UK Terrorist Act 2006 and the Jurispuridence of the European Court of Human Rights. Netherlands Quarterly of Human Rights 27/3: 331–360. Online Harms White Paper Initial Consultation Response. https://www.gov.uk/government/ consultations/online-harms-white-paper/publicfeedback/online-harms-white-paper-initial-con sultation-response#executive-summary. Accessed on 21 Apr 2020. Oster. 2013. Theory and Doctrine of Media Freedom as Legal Concept. Journal of Media Law 5 (1): 57–78. Sunstein, Cass. 2009. Republic.com, New Jersey/Oxford: Princeton University Press. Parks, Lisa et al. 2017. “I have the Government in my Pocket ...”: Social Medie Users in Turkey, Transmit-Trap Dynamics, and Struggles over Internet Freedom. Communication, Culture & Critique 10: 574–592. Prevent Duty Guidance, “A. Status and Scope of the Duty” and Counter-Terrorism and Security Act 2015, section 26. Radsch, Courtney. One Year After Charlie Hebdo, “Will Press Freedom become Victim of War on Terror?” https://cpj.org/blog/2016/01/one-year-after-charlie-hebdo-will-press-freedom-be.php. Accessed 23 Jan 2020. Resmi Gazete. https://www.resmigazete.gov.tr/eskiler/2020/07/20200731-1.htm. Accessed on 29 Sept 2020. Reuters. https://www.reuters.com/article/us-turkey-security-media/more-than-120-journalists-stilljailed-in-turkey-international-press-institute-idUSKBN1XT26T. Accessed on 28 Jan 2020.

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Potter, W.J. 2013. Synthesizing a Working Definition of “Mass” Media. Review of Communication Research 1: 1–30. Sunstein, Cass R. 1995. Democracy and the Problem of Free Speech. New York: Free Press. Scanlon, Thomas. 1972. A Theory of Freedom of Speech. Philosophy and Public Affairs 1 (2): 204–226. ———. 2011. Comments on Baker’s Autonomy and Free Speech. Constitutional Commentary 27: 319. Terrorism Act 2006, c.11, sections 1,2,3 and 4. The Atlantic. https://www.theatlantic.com/news/archive/2017/04/turkey-blocks-wikipedia/524859/ . Accessed 31 Jan 2020. The Telegraph. https://www.telegraph.co.uk/news/worldnews/europe/turkey/11518004/Turkeyblocks-access-to-Facebook-Twitter-and-YouTube.html. Accessed on 30 Jan 2020. The Guardian. https://www.theguardian.com/environment/2020/jan/19/extinction-rebellion-listedas-key-threat-by-counter-terror-police. Accessed on 27 Jan 2020. Williams, Raymond. 2003. Television: Technology and Cultural Form. London/New York: Routledge. Wayne, M. 2003. Marxism and Media Studies: Key Concepts and Contemporary Trends. London: Pluto Press.

Chapter 7

Hate Speech and Limits of Free Speech

Abstract In this chapter, I discuss how the theoretical framework that I propose deals with the question of hate speech in relation to the possible limits of free speech. First, I distinguish offensive speech and hate speech and argue that offense alone is not a strong enough justification to restrict speech whereas hate speech can be. It is because offense often signifies a subjective state of mind and there is an epistemological barrier to knowing and judging the exact state of mind of an offended person. On the other hand, I argue, hate speech may or may not involve offense but it generates or contributes to the generation of objective conditions of discrimination and exclusion. Second, I claim that neither the equal autonomy argument nor the democratic participation argument can counter the challenge of hate speech on their own. The equal autonomy view is vague on the issue of hate speech since it does not categorically distinguish between different categories of speech in relation to the limits of free speech. Moreover, the democratic participation argument tends to ignore the fact that hate speech is incompatible with the requirements of democratic deliberation. Contrarily, I contend, the double-grounded principled approach addresses hate speech as a category of non-protected speech both as an issue of equal autonomy and democratic participation. In other words, hate speech is not a political speech which aims to contribute to public deliberation and it does not recognize members of the target group as free and equal members of a political community either. Lastly, I discuss whether hate speech legislation violates the principle of democratic legitimacy. I claim that hate speech undermines the conditions of substantive freedom and equality and in this respect, hate speech laws serve a function to protect the substantive freedom and equality of the minorities in the public realm. Keywords Free speech · Hate speech · Offensive speech · Political correctness · Hate speech laws

In the preceding two chapters, I attempted to apply the proposed theoretical framework of the book, namely the double-grounded principled approach, to the realms of academic freedom and media freedom respectively. In this chapter, I shall discuss © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 D. Kabasakal Badamchi, Dimensions of Free Speech, Philosophy and Politics Critical Explorations 19, https://doi.org/10.1007/978-3-030-88319-5_7

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how the framework I propose deals with the question of hate speech in relation to the possible limits of free speech. I shall argue that the double-grounded principled approach considers hate speech as non-protected speech because hate speech is not political speech that aims to contribute to public deliberation. In other words, hate speech does not recognize the free and equal status of certain groups of people and intends to exclude them from the public deliberation. First, I begin the chapter by discussing the contextual relevance of hate speech debates and the characteristics of what might be called as hate speech. Secondly, I focus on the reasons why hate speech cannot be protected speech. Then, thirdly, I shall focus on political correctness and offensive speech to discuss whether and how they can be accepted as limits to free speech. Finally, I survey the hate speech legislation in Europe and North America and evaluate if and how the legislation in different continents is justified according to the theories of free speech and particularly from the perspective of the double-grounded principled approach.

7.1

The Contextual Relevance of Hate Speech Debates

Hate speech has become one of the significant dimensions of free speech debates over the last couple of decades. As Billingham and Bonotti state quite firmly; the Brexit Referendum, Donald Trump’s election as the President of the United States in 2016, the rise of populism and far-right policies in several European countries as well as Islamophobia across Europe have generated a necessity to discuss hate speech in relation to the limits of free speech in public and academic platforms (Billingham and Bonnotti 2019, 531). Additionally, offense to religious beliefs has been a significant topic of debate since the Rushdie Affair in the late 80s and gained momentum with the 2006 Jyllands-Posten Cartoons controversy and Charlie Hebdo attack in 2015. It can be claimed that the context that led to the rising intellectual interest in hate speech over the past two decades has been largely a product of the condition of pluralism. As Ferrara points out: “The societies in which we live, especially in Europe, are populated by large sections of the population that adhere to Roman Catholicism, to Islam, to Orthodox Christianity, to Marxism, to Hinduism, to Confucianism, and in the United States, together with orthodox Judaism, and evangelical fundamentalism.” (Ferrara 2014, 90). Given this fact of hyperpluralism, as Ferrara calls it, the question of how to live in a peaceful and just democratic society considering our differences has dominated the agenda of normative political theory. In line with this, the questions of democratic legitimacy, justification, free speech and its limits have been marked by the condition/fact of pluralism. Scholars have begun to discuss hate speech in relation to whether it can be a protected free speech given our essential commitment to democracy. In other words, it has become essential to address the boundaries of free speech in a pluralist democracy. We may identify the hate speech and offensive speech debates on the Rushdie affair and Jylles-Posten Cartoons, which I will address specifically in the Sect. 7.6, as part of

7.1 The Contextual Relevance of Hate Speech Debates

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this endeavor to discuss the normative boundaries of free speech in pluralist societies. However, I believe there is another global condition that makes hate speech debates essential in contemporary times, which has to do with the transforming nature of political speech. In the past few years, we have been witnessing hate speech and offensive speech being widely utilized by some political leaders to sustain their power in different parts of the world. Perhaps Donald Trump era was one of the most notorious periods in the late couple of decades where resort to hateful and offensive speech has gained momentum. For example, during the Pandemic, Trump called the coronavirus the ‘Chinese virus’ on Twitter, possibly to sustain his power through an antagonistic language of war, right before the elections.1Many other examples of hateful and offensive speech that was used by some other political leaders might be found elsewhere in the world as well. Especially with the rise of right-wing populism and nationalism globally, a political discourse which is more tolerant of hateful expressions of politicians has increasingly become part of the global political scene. In Europe, anti-immigrant and xenophobic language fueled by populism has begun to generate a public space which is more tolerant towards the resort to hateful expressions by political leaders. The campaign of Nigel Farage, who was the leader of the United Kingdom Independence Party (UKIP) during the 2016 Brexit Referendum process in the UK, represents one of the notable examples of the usage of offensive- and perhaps even hateful- speech as a tool for political gain. For instance, as part of its campaign, UKIP put out a poster depicting a line of refugees from the Middle East with the slogan Breaking Point displayed in red (Reid 2019, 623–624) The poster pointed out the immigrants as outsiders and threats to the country’s welfare and was certainly offensive, if not hateful. The resort to hateful and offensive speech as part of doing politics does not only figure in European politics. For instance, Turkish politics, among others such as Indian, Brazilian and Russian, constitutes an example where hate speech is widely used as a means of political activity by the rulers. The ruling AKP leaders used antagonistic language which was fueled by hateful and offensive speech during almost all the political campaigns over the last decade, which simply aimed to silence the opposition. President Erdogan, on various occasions in different election campaigns, publicly declared the opposition actors as terrorists and enemies of the nation.2This populist war language which is based on a friend and foe distinction has

He defended his naming of the virus as not racist and continued to use the phrase ‘Chinese virus’ both on twitter and at press conferences as part of his claim that the virus was released from a lab in China regardless of the experts’ judgment that there is no evidence that it comes from a lab. For a review of some of his tweets and defence, see https://www.cnbc.com/2020/03/18/coronaviruscriticism-trump-defends-saying-chinese-virus.html 2 The election campaign before the Constitutional Referendum in the spring of 2017 represents one of the most acute manifestations of the antagonistic language based on hate speech. In the Constitutional Referendum, the political system of the country was changed from parliamentary to presidential system. Hateful and offensive speech have been widely used not only by Erdogan but by the Prime Minister at the time Binali Yildirim and the ruling party campaigners, as a method of 1

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been in use for a long time by rulers as a means to consolidate power, especially by way of addressing the nationalist and religious sentiments of the people.3 But is politics not about antagonism and conflict? The resort to hate and offensive speech by political actors, especially by political leaders and members of Parliaments holds the potential to normalize racist and xenophobic language in politics. In other words, populism fueled by anti-immigrant and xenophobic sentiments often accelerates the usage of racist and hateful language in public. I believe this transforming nature of politics in contemporary times must be alarming for scholars who think and write about free speech. My reasoning is not about calling for censorship or legal sanction on political speech since, I think, political speech should be protected speech which has an ultimate prior value for the exercise of democratic activity. Nevertheless, this impact of hate speech on contemporary political discourse needs to be addressed and this has to be done through debating the meaning and nature of politics and political activity itself. Part of my attempt to define hate speech as non-protected speech concerns this endeavor of defining the features of political activity. I shall explain in detail the reasons for the consideration of hate speech as non-protected speech in Sect. 7.4 of this chapter. Therefore, here, I limit myself to pointing out that hate speech does not qualify as political speech that aims to contribute to public deliberation. Hate speech is, by its very nature, exclusionary and far from recognizing the universal requirements of public deliberation. However, I must also add that claiming that hate speech is non-protected speech does not necessarily follow with an argument for the legal sanction of the resort to hate speech in political contexts. Rather, my argument addresses a normative stance on hate speech which calls for various possible considerations for the regulation of hate speech in different contexts ranging from no-platforming to restrictions on funding for political campaigns. In other words, regulation of resort to hate shall depend on the requirements of the particular context as well as the features of hateful expression. silencing the specific political groups and individuals, who are critical opponents of the ruling government such as the political parties of CHP and HDP, and members of civil society organizations and social movements. The opposition was against the change of the system and wanted to retain the parliamentary system whereas the ruling party AKP and the ultra-nationalist MHP supported the change and the presidential system. Throughout the campaign, saying no to the change was labelled as being the enemy of the nation. An antagonistic Schmittian friend and foe distinction was utilized against the ‘no’ campaigners which aimed to exclude them from the public forum and deny their subjectivity. Most of the media outlets are owned by or are supporters of the ruling power in Turkey. During the campaign, a campaign of hate speech was initiated by the media against the opposition as well. For some examples of the media coverage, see Sabah, 06.02.2017, https://www.gzt.com/gazeteler/sabah-gazetesi-06-02-17, Yeni Akit, 03.04.2017, https://www.gzt. com/gazeteler/yeniakit-gazetesi-03-04-17 3 For an analysis on hate speech in Turkey from a political theory perspective see Cem Deveci & Burcu Nur Binbuğa Kınık (2019) Nationalist bias in Turkish official discourse on hate speech: a Rawlsian criticism, Turkish Studies, 20:1, 26–48, DOI: https://doi.org/10.1080/14683849.2018. 1479961. The article analyses the legal regulations, decisions and public responses to hate speech and claims rightly that the perception of hate speech in Turkey is shaped by the nationalist bias that hate speech can only target the unity of the state, nation or the principles of the regime.

7.2 Characteristics of Hate Speech

7.2

123

Characteristics of Hate Speech

I shall begin my analysis by first showing that offensive speech and hate speech are different in nature, even though at times it might be difficult to distinguish them, given the interconnectedness between the two. There can be cases where the offensive speech environment leads to a climate of hatred in the course of time, but at a conceptual level, I take it that they have different messages and aims. This distinction matters when discussing under what conditions speech can be regulated and what might justify legal regulation as opposed to other types of social and community norms. I believe most people would agree that speech can hurt, offend and harm just like any other conduct. In this sense, both offensive speech and hate speech are harmful, depending on the circumstances in which they occur. Regardless of the inherent ambiguity of the concept of harm, offense also seems to appear as a vague concept. As Peter Jones mentions, it is both a negative experience and a subjective phenomenon (Jones 2011, 80). It signifies a negative mental state mostly concerning the feelings and sensitivities of a person. It is likely this quality of offense that makes it a problematic and almost impossible candidate to justify the regulation of speech. The objects of the offense, i.e. the conduct that leads to offense, can be interpreted in different ways by different people. It could be argued, as Feinberg does, that only reasonable offense (and not other types) might be a candidate to justify the regulation of an offensive expression. However, evaluating the subjective state of another’s mind by labelling it as reasonable or not might look too patronizing and even unfair, due to the subjective nature of the feelings of offense. In other words, there is an epistemological barrier to knowing and judging exactly the state of mind of an offended person. For this reason, it is problematic to claim to restrict or censor an expression just because it is perceived as offensive by some persons or groups of people. This is not to argue that offense should not be taken seriously or that it is not worth consideration. More precisely, I believe it is not a strong enough candidate to provide a moral justification to regulate speech. Unlike offensive speech, hate speech illustrates a situation that is more likely to be a candidate that can be regulated on moral grounds. I will delve into this discussion later in detail. Let me begin by outlining the key features of hate speech. One of the primary aspects of hate speech is that it is not reducible to dislike, disapproval and disrespect even though it involves such features. Therefore, hate speech is based on stronger feelings such as hate and hostility. Here, Bhikhu Parekh’s definition of hate speech is quite helpful: “It implies hostility, rejection, a wish to harm or destroy, a desire to get the target group out of one’s way, a silent or vocal and a passive or active declaration of war against it.” (Parekh 2006, 214). Evidently, hate speech is defined by the feeling of hate in very generic terms. Given the above definitions of hate speech, we might refer to four basic components of hate speech. First, hate speech targets an individual or a group of individuals on the basis of certain characteristics such as race, ethnicity, sexual orientation or any other characteristic that could be the target of hate. (Brison 1998, 313) Even if the

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target is one single individual in particular, the hostility is directed in relation to a characteristic of a group to which the individual is assumed to belong. Secondly, hate speech ascribes the target a set of constitutive qualities that are considered highly undesirable (Parekh 2006, 214). Since these qualities are presented as almost unchangeable and inherent, the bearers of these qualities are demonized and humiliated. It could be that character qualities such as laziness, uncleanness, unreasonableness, etc. are presented as if they are the results of a person’s group identity. The connection between a given group identity and the ascribed qualities is assumed directly in the form of a strong belief, as something given by nature. As a direct result of the demonization, the target groups are placed outside the normal social relations (Parekh 2006, 214). They are pictured as unreliable, irresponsible and unreasonable so that it is not possible to share the common rules of society with them. Exclusion from the normal social relations of the society entails exclusion from political relations as well. Since the targets are represented as beings that cannot share the rules of living together and cooperate in sharing the burdens of society, they are viewed as if they do not deserve to participate in political deliberation. Finally, as Susan Brison mentions, hate speech includes vilification either in the form of face-to-face libel or creating a hostile environment, as well as group libel (Brison 1998, 313). We might think of this aspect of hate speech in parallel with what Parekh calls “declaration of active or passive war against the target group.” In fact, vilification itself on the basis of hate in relation to a group identity might be considered a form of war as long as it operates through a hostile language that designates certain individuals and groups as enemies that can be legitimately discriminated against. That is to say, hate speech operates in general with a major binary opposition of friend and enemy distinction in the Schmittian sense.4 The target group is portrayed as an existential enemy that is distinctly different from other persons who are acceptable and reliable members of society (Fig. 7.1). Given the above, we can also claim that hate speech might involve an element of offense as well as hate and hostility. But hate speech does not function primarily by creating a negative state of mind in the target based on the feeling of offense. In other words, it generates or contributes to the generation of objective conditions of discrimination and exclusion.5

4

For a detailed description of the friend and enemy distinction and how it reflects in the meaning of the political in Schmitt’s theory, see his The Concept of the Political, trans. by George Schwab, The University of Chicago press. 5 This distinction between hate and offense provides us a more or less solid ground from which to argue for the legal regulation of hate speech. Nevertheless, this does not mean that it puts an end to the controversies around disagreements over the meaning of hate. The issue of what hate amounts to is a big dispute among legislators as well as judges. Moreover, a distinction is usually made between the “expression of hate” and “incitement of hatred in others” by legislators and judges when deciding on specific cases. This makes the issue even more complicated than it might seem, though I believe we have reason to oppose both the expression and incitement of hate at the same time. I

7.3 An Overview of the Theoretical Views on Hate Speech

Targeting an individual or group on the basis of certain characteristics

125

Ascribing the target/s a set of constitutive qualities that are viewed highly undesirable

hate speech

Target/s placed outside the realm of normal social relations. Portrayal of targets as unreliable and unreasonable etc.

Either face to face vilification, creating a hostile and intimidating environment or a kind of group libel

Fig. 7.1 Characteristics of hate speech

7.3

An Overview of the Theoretical Views on Hate Speech

In this section of the chapter, I shall endeavor to lay out a theoretical map of the debates on hate speech by focusing on major thinkers who tackled the issue so far in normative political theory. This will help me locate my take on the issue within the theoretical landscape in terms of identifying the place where the proposed framework of this book; namely the double-grounded principled approach to free speech; belongs. In other words, I intend to point out the defining features of the hate speech debate within the normative literature so that, in the subsequent section, I may put forth my own normative view on hate speech; i.e. whether hate speech should be protected at all. Most of the literature I address here discusses this issue from a normative perspective. Therefore, I will not be focusing on other dimensions of the debate. I think we could identify three major positions that discuss hate speech in relation to the limits of free speech. The first position can be labeled as the consequentialist position which mainly focuses on Mill’s harm principle and its applications and revisions. This position discusses hate speech mostly regarding its impact on individuals’ actions, i.e. whether it causes harm and the features of the harm in question. The second position is against the regulation of hate speech since on this view the regulation violates certain principles such as autonomy, democratic legitimacy and democratic citizenship. I will call this the non-interventionist argument. The last position considers hate speech as non-protected speech due to its incompatibility with certain principles such as dignity and democracy. Although this position is also concerned with the impact of hate speech on individuals’ lives to a

shall touch upon some of the judicial practices on hate speech in the last Sect. (7.7) of the chapter when I discuss hate speech legislation in particular.

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certain extent, their main opposition to hate speech is not necessarily consequentialist. I shall call this position the incompatibility argument. Alexander Brown and David Brink discuss hate speech within the framework of Millian utilitarianism and the harm principle. Both thinkers investigate the dimensions of Mill’s harm principle in order to assess why and how hate speech can be subject to legal intervention. Brown in particular, refers to what he calls ‘incitement to hatred’ to refer to hate speech and argues that Mill’s theory allows for prosecution only with the condition that the harm leads to acts of violence, damage to property, discrimination and injustice which likely occur in a climate of hatred (Brown 2008, 2–13). He thinks, given this definition of harm, there is a need to balance freedom of speech against possible future harms. Such balancing requires that legal interventions should consider a proportionality test that involves three dimensions: “(i) the extent and likelihood of any future discrimination, violence and injustice that might occur as a result of someone’s words or behavior, (ii) the effectiveness of the proposed intervention and (iii) the importance of any freedom of expression that is to be restricted.” (Brown 2008, 14). David O. Brink reconstructs Mill’s theory on free speech in a different light by introducing a framework that is not restricted to the concept of harm. By taking inspiration from First Amendment jurisprudence, he distinguishes between highvalue speech, or speech which is deliberation enhancing, and low-value speech, understood as speech which fails to engage in deliberation (Brink 2009, 56). He claims, although Mill does not endorse such a categorization of speech, interpreting his view on free speech along the lines of this distinction allows him to incorporate some central aspects of First Amendment Jurisprudence into his theory consistently. In other words, Brink reckons, “. . .one way to reconcile his free-speech principles with his other liberal principles would be to treat speech that fails to engage or retards deliberative values as low-value speech whose suppression could be justified as a form of deliberation-enhancing censorship, akin to the autonomy enhancing paternalism that he explicitly recognizes” (Brink, 60). The motivation behind Brink’s reconstruction of Mill’s theory on free speech is justified and understandable since the appeal to harm alone has its limitations due to its lack of differentiation between different types of speech in relation to their value for democratic deliberation. Whether Mill’s theory can allow some room for this reconstruction is beyond the goal of this chapter. Brown’s interpretation of the harm principle remained within the Millian framework by further clarifying the different dimensions of harm in Mill’s theory and how we can justify legal intervention in the case of hate speech. In this sense, I think Brown’s take on hate speech is consequentialist while Brink’s reconstruction of Mill’s theory seems to be a blend of consequentialism and what I have referred to above as the incompatibility argument. That is to say Brink introduces the idea that hate speech can be censored within Mill’s theory not just because it causes harm but also, in some circumstances, it is not compatible with the values of democratic deliberation. In spite of Brink’s nuanced argument, I think the consequentialist argument is far from treating hate speech as non-protected speech regardless of its consequences. In other words, it does not question the quality of hate speech as a matter of principle.

7.3 An Overview of the Theoretical Views on Hate Speech

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Moreover, the concept of harm always signifies an ambiguity because its boundaries are not as solid as we might think. Generally, thinkers tend to define harm in terms of objective discrimination, physical violence, a climate of hatred, etc. but then, even those definitions might at times be subject to different interpretations under different circumstances. The proportionality test, like the one offered by Brown, that aims to balance free speech and future possible harms can provide practical solutions in some hard situations. However, it lacks addressing what is wrong with hate speech that requires us to consider it as speech that can be regulated. The second position, what I have called the non-interventionist argument above, criticizes hate speech legislation and argues that legal interventions violate certain values such as autonomy and democratic legitimacy. Some notable examples of such arguments have been developed by thinkers such as Edwin Baker, Ronald Dworkin and Eric Heinze. This does not mean that this position considers hate speech harmless; rather, it claims that the legislation of it is unjustified on the basis of some moral principles that value free speech. Ed Baker opposes hate speech regulations as a requirement of the formal autonomy of individuals, which the state must respect as part of its commitment to democratic legitimacy. A democratic state cannot ask its citizens to obey the law without recognizing the formal autonomy of its citizens (Baker 2009, 142). In other words, respecting the formal autonomy of the individuals means respecting the individuals’ right to choose. In this sense, it is different from substantive autonomy, which “involves a person’s actual capacity and opportunities to lead the best, most meaningful, self-directed life possible” (Baker 2009, 143). In line with this, according to Baker, expressions of hate, as expressions of individuals’ views, are part of the formal autonomy of individuals and they require protection as a matter of democratic legitimacy. The quality of the formal autonomy referring to a universal capacity to choose, as opposed to an actual capacity to lead a chosen life, justifies the right to express hate speech freely for another reason. Hate speech, like any other expression of views, does not undermine the other’s right to formal autonomy. That is to say, “law’s respect for formal autonomy of one person never denies respect for the formal autonomy (or, for that matter, formal equality) of another.” (Baker 2009, 143). For Baker, this is not to argue that hate speech does not harm, but rather for him the issue is that expression of views does not interfere with the formal autonomy of others. I believe Baker’s distinction between the two types of autonomy makes sense in the context of free speech debates and I agree that the right to free speech is a requirement of the democratic legitimacy of the state. However, on the other hand, I struggle to find reasons for why we should protect hate speech given its interference with the substantive autonomy of others. Hate speech might seriously violate the substantive equality and autonomy of others especially that of some minority groups, through constituting a climate of hatred and I believe this provides us enough reason to consider a balancing attitude depending on the circumstances with respect to hate speech legislation. In parallel to Baker, Ronald Dworkin also argues for free speech as a requirement of the respect for the equal and free status of individuals. In line with this, he opposes

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the censorship of hate speech on the basis of the principle of political legitimacy and claims: “. . .it is illegitimate for governments to impose a collective or official decision on dissenting individuals, using the coercive powers of the state, unless that decision has been taken in a manner that respects each individual’s status as a free and equal member of the community.” (Dworkin 2009, vii) In other words, for him, governments only respect the equal and free status of individuals as long as they allow every individual to express their opinion freely, no matter what the content of that opinion is. For this reason, for him, majority decisions taken under conditions of the censorship of certain opinions are far from being legitimate and fair. I believe the same criticism I raised against Baker holds against Dworkin as well. Do we not have reason to expect every person to formulate their opinions in a more reasonable/ acceptable manner in order to be included in the political deliberation? It can be argued that hate speech, which targets a group of people as enemies and creates a climate of hostility and fear, can hardly be the source of democratic legitimacy since it does not aim to contribute to public deliberation. Like Dworkin, Eric Heinze develops an argument against hate speech laws on the basis of democratic legitimacy. For him, freedom of speech is central to democratic citizenship and the regulation of it through hate speech laws violates the principle of political legitimacy. He emphasizes that the legitimating expressive conditions of democracy demand that citizens be able to voice their opinions freely without being censored for the reason that their opinion is revolting or vicious (Heinze 2016, 17–22).6In line with this, he adds a proviso to his argument and asserts that his prohibitive view on hate speech laws is only valid for longstanding, stable and prosperous democracies (Heinze 2016, 9). Therefore, whether to allow hate speech laws or not should take into account the specific political conditions of every country (Bonotti 2017, 277). I believe the distinction Heinze made between long-standing, stable democracies and the rest in application of his prohibitive view on hate speech laws is based on the belief that longstanding democracies must have developed various mechanisms to deal with hate speech other than legislative measures. However, I doubt the sustainability of this distinction given the rise of hate and racist speech even in longstanding stable democracies. The racist murder of George Floyd by the police in Minneapolis in May 2020 is just one among the many symptoms of the structural racism in, what Heinze calls, long-standing and stable democracies. Perhaps it is difficult to know empirically whether hate speech laws reinforce or lessen structural racism, but given the US’s lack of hate speech laws, we are justified in questioning the effectiveness of the absence of hate and racist speech regulation in the current conditions of prevailing racism. Jeremy Waldron’s view on hate speech is an illustration of the third position, which I called the incompatibility argument. His theory allows room for the legal regulation of hate speech because for him, hate speech aims to undermine the social dignity of targeted groups, both in their own eyes and in the eyes of others. Waldron

6

Emphasis original.

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defines social dignity in the sense of a person’s basic entitlement to be regarded as a member of society in good standing (Waldron 2012, 105). Social dignity is different from offense, which is a subjective reaction based on feelings; it addresses an objective and social aspect of someone’s status in society. This status is defined by the equal entitlement to basic justice and being treated with equal respect and recognition as a member of society. In this sense, for Waldron, hate speech regulations must protect persons from the attack of hate speech which aims to disqualify them from being treated as a member of the society in good standing (Waldron 2012, 105). Waldron’s justification for the regulation of hate speech is founded on the belief that hate speech is incompatible with the endorsement of the principle of social dignity in democratic societies. This justification is part of a broader argument that values diversity as a major public good in a democratic society. Thus he notes: First, there is a sort of public good of inclusiveness that our society sponsors and that it is committed to. We are diverse in our ethnicity, our race, our appearance, and our religions. And we are embarked on a grand experiment of living and working together despite these sorts of differences. Each group must accept that the society is not just for them; but it is for them too, along with all of the others. . .Hate speech undermines this public good, or it makes the task of sustaining it much more difficult than it would otherwise be. (Waldron 2012, 4)

In other words, equal social dignity, as a requirement of the public good of diversity, justifies legal intervention against hate speech. The double-grounded principled approach is most compatible with the incompatibility position that I illustrated above by referring to Jeremy Waldron’s argument on social dignity. Like Waldron, I think that hate speech should be regulated and it should be so for the principled reason that each person should be granted an equal social standing in a democratic society.7 My approach, like the incompatibility position, takes into account the consequences of hate speech in our lives, but unlike the consequentialist approach, it opposes hate speech as a matter of principle. Waldron does not specifically oppose hate speech on the basis of its incompatibility with democratic deliberation. Nevertheless, I believe his conception of social dignity takes into account the idea of equal standing in public deliberation, which is in line with my understanding of free speech. In other words, his argument embraces diversity as a public good to be protected and in principle, this can be compatible with the justification of democratic participation. The double-grounded principled approach claims that hate speech cannot be a protected speech in principle since it both aims to undermine the equal standing of its targets in the society and in democratic public deliberation. In this sense, my approach particularly emphasizes that hate speech cannot deserve the priority that is assigned to political speech since its goal is to exclude certain groups of people, who are equal and free like every other

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In their recent book, Bonotti and Seglow develop a similar position to that of Waldron and mine on hate speech. They discuss the implications of the theories of truth, autonomy and democracy for the hate speech debate and argue for a principled position on the need to regulate hate speech. See Matteo Bonotti and Jonathan Seglow, Free Speech (Polity Press, 2021)

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individual, from the public forum. I shall illustrate how the double-grounded principled approach tackles the issue of hate speech more in detail below in the next section of the chapter.

7.4

Can Hate Speech Be Protected Speech?

In Chap. 4, I briefly examined the view of the double-grounded principled approach on hate speech and argued that hate speech cannot be considered as protected speech because it is not a political speech which aims to contribute to public deliberation. In other words, my endeavor was to argue that hate speech does not recognize the persons of the target group as free and equal members of a political community, which makes hate speech hardly a candidate for being a political speech. In this section, I intend to discuss and answer possible arguments that would challenge this view on hate speech. Before addressing the possible counterarguments to my view on hate speech, I would like to take the risk of reiterating myself and recall in a few sentences the core features the double-grounded principled approach that is proposed as a theoretical framework on free speech in this book. As discussed in Chap. 4 in detail, the doublegrounded principled approach is founded on two principled foundations; equal autonomy and democratic participation. It combines these two principled foundations of free speech by critically evaluating and revising their features on free speech. In other words, the proposed theoretical framework addresses the weak and strong aspects of these principled foundations for free speech and articulates a new framework, that is stronger than each of the foundations as single grounds for free speech, to validate the value of free speech as such. Given the above, the double-grounded principled approach addresses hate speech as a category of speech that can be regulated, which is not addressed firmly by either of the theories alone—equal autonomy and democratic participation. The equal autonomy view is vague on the issue of hate speech since it does not categorically distinguish between different categories of speech in relation to the limits of free speech. Moreover, the democratic participation argument tends to ignore the fact that hate speech is incompatible with the requirements of democratic deliberation. Contrarily, the double-grounded principled approach addresses hate speech as a category of non-protected speech both as an issue of equal autonomy and democratic participation. That is to say, both principles of equal autonomy and democratic participation require us to view hate speech as speech that can be regulated and this is because hate speech does not recognize the free and equal status of persons in public deliberation and does not aim to contribute to democratic deliberation. After this recap, we may begin reflecting on the possible arguments against the view I defend on hate speech as non-protected speech. The first possible argument against my view on hate speech, I believe, would have to do with the nature of the concept of the political. In my argument, I rely on a definition of democratic politics based on the debate among free and equal persons on public political matters. This

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might sound too idealistic and even unrealistic as a way of characterizing political activity. It could be rightly claimed that political activity is about struggle, power and conflict as well as deliberation. One could even go a step further and say; political activity is about the friend and enemy distinction as Schmitt suggested years ago in his well-known book The Concept of the Political. I believe that nothing I have said so far excludes the dimension of the conflict in democratic political activity. I too agree that politics is about both conflict and deliberation. Nevertheless, political speech is the speech that is voiced in particularly public deliberation with the aim of addressing public political matters. In this sense, it has to recognize the equal and free status of all persons to whom it is addressed. The activity of politics, in the form of public deliberation, involves both disagreement and consensus and most of the time, deliberation aims to resolve the disagreements to reach a consensus. However, this does not mean that when there is no consensus, there is no politics. Rather, there are also some situations that force us to respect unresolvable disagreements. My point is that, hate speech is far from both recognizing and addressing disagreement as well as consensus due to its inherent tendency to work against the rules of the deliberation. In other words, hate speech aims to destroy its targets because of their identity and in this sense, it is far from developing an argument based on disagreements, which would qualify as a political speech. One may question whether the statuses of undemocratic speech and hate speech are similar on the view of the proposed framework of the book and whether undemocratic speech might have a place as a protected speech. I believe any speech, as long as it complies with the formal requirements of democratic deliberation, i.e. respecting the free and equal status of every person participating in the deliberation as a universal rule and aiming to contribute to public deliberation, deserves to be labeled as a protected political speech. The ability to criticize the exiting institutions and policies of a constitutional regime is one of the foundational pillars of a democratic society which has to protect itself against degenerating into a tyranny of the majority. Free speech has the utmost constitutive value for the self-awareness and self-criticism of a democratic society in terms of its commitment to open and free deliberation. In this sense, the statuses of undemocratic speech and hate speech are different because undemocratic speech, unlike hate speech, aims to contribute to the democratic debate even though it criticizes the rules of the game that is provided. For instance, socialist, communist or anarchist speeches contribute to public deliberation by addressing the issues of injustice and inequality within the liberal institutions and policies. Certainly, we cannot argue that hate speech operates that way and contribute to the democratic debate and culture. The second argument that challenges the view that hate speech is not protected political speech is the democratic legitimacy argument. Similar versions of this argument are developed by thinkers such as Robert Post, Eric Heinze and Ronald Dworkin. The arguments of these thinkers were mostly laid out in one of the previous sections of this chapter; therefore, here I will just refer to them very briefly. Post opposes hate speech regulations on the basis of the claim that they violate the principle of democratic legitimacy. In his view, self-government, which is at the core

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of democracy as a normative ideal, is different from majoritarianism and each person should be able to recognize particular decisions as their own as a requirement of selfgovernment and legitimacy (Post 2007, 74). Here the idea is that hateful opinions should find a space to be expressed in a democratic polity to ensure people who express those opinions freely can legitimately accept the decisions regarding their viewpoint. Heinze and Dworkin support similar positions on the issue of hate speech. Heinze, as I noted previously in this chapter, shares the claim that hate speech regulations and censorship of hate speech in liberal democracies considerably undermine democracy and legitimacy. In other words, he points out that free expression is one of the ‘legitimizing expressive conditions’ of democracy and any viewpoint-based restriction of freedom of expression undermines the democratic qualities of the states (Heinze 2016, 95). In parallel, as I mentioned in the second section of this chapter (7.3), Dworkin claims that the decisions of democratic governments are only legitimate as long as they are taken under the conditions of free expression of ideas (Dworkin 2009, vii). Like the views of Post and Heinze, Dworkin’s position is a rights-based approach that considers free expression as a legitimizing condition of democracy. One may easily guess that I am not opposing here the idea of free expression as the legitimizing condition of democracy. One of the pillars of the double-grounded principled approach addresses democratic participation as a founding justification for free speech as such. What I find problematic is the causal relationship established between hate speech regulation and the undermining of democratic legitimacy. Post, Heinze and Dworkin all have complicated ideas on the matter and I am not going to address each of them in detail. I limit my criticism to the common conclusion that hate speech purveyors should be able to speak freely for the sake of democratic legitimacy. I will oppose this by asking a simple question: What makes the interest of the hate speaker more important than the interest of the targeted person/s? Does democratic legitimacy require us to consider merely the interest of the speaker? As defined before, hate speech is the type of speech that targets a group of people on the basis of the group’s common characteristics and aims to exclude them from public and civic life. Let’s assume an expression of a racist hateful speech is in the interest of a speaker X and this is in line with democratic legitimacy. But, equally the people towards whom the hateful expression is addressed have interests as well and those interests have to be taken as seriously as the interest of the speaker X. We have reasons to believe that most of the audience would be intimidated and offended by the hateful expression of X. Moreover, especially the persons targeted by the hateful expression would have to face some serious harm and hostility and their interest in not being subject to hate speech has to be taken seriously. Additionally, the targeted persons could claim that they are excluded from the public forum and their equal social and moral standing is compromised by allowing the speaker X to speak freely. In light of the above, the same democratic legitimacy argument can be claimed for protecting the interests of the group of people targeted by hate speech. Contrarily, the democratic legitimacy argument considers the interest of the speakers as the first and only interest at stake. Furthermore, there is one other question to be answered by the

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thinkers who oppose hate speech regulation: Do the speakers need hate speech to contribute to democratic deliberation? Clearly this is not the case. Hate speech is not a good tool if someone needs to have an impact on the decision-making process or to feel as if their opinion is recognized by the laws of the democratic polity. This is so particularly because democratic deliberation is a forum to come together in plurality and equality, by respecting our differences and equal moral status. The third argument that challenges my view on hate speech would be based on the idea of equal autonomy. In general terms, equal autonomy requires persons to be able to speak freely since their autonomous capacity can only be exercised through free speech. In other words, political authority should respect that each person has the capacity to choose and lead the life of their choice, and it can only do this by not censoring the speech of persons because it is ignorant, wrong, etc. I do not need to emphasize more here that the double-grounded principled approach agrees with this since equal autonomy is one of the two foundational justifications for free speech as long as the proposed theoretical framework of this book is concerned. As seen before, Ed Baker develops an argument on the basis of what he calls formal autonomy and argues that the State should respect the formal autonomy of individuals in order to legitimately require them to obey the law. He distinguishes formal autonomy—the universal capacity to choose, from substantive autonomy— the actual capacity to choose, and claims that the law’s recognition of one person’s formal autonomy does not violate another person’s formal autonomy. In other words, for Baker, hate speech regulations violate the formal autonomy of the person who utters that speech whereas on the other hand, letting the hate speech be uttered does not interfere with anyone’s equal formal autonomy. I opposed Baker’s view on hate speech in Sect. 7.3 by challenging him on the fact that he overlooks the interference of the state with the substantive autonomy of the targeted persons by simply protecting hate speech. That is to say, I have argued that substantive autonomy, the actual capacity to lead a chosen life, of the people targeted by the hate speaker might be impacted seriously due to the harm caused by hate speech and the consequences of the hateful climate. In this sense, I have claimed, I do not see enough reasons to sustain the formal equality argument, given the damage that is done to the substantive autonomy of some people. My above criticism needs some qualification. I do not principally oppose Baker’s distinction between formal and substantive autonomy. The double-grounded principled approach I propose is founded on the idea of equal autonomy both as formal and actual autonomy. My criticism concerns the way Baker justifies the protection of hate speech. He basically takes for granted that an act of speaking is an exercise of the formal capacity of autonomy but not necessarily the substantive capacity of autonomy. I believe we have reasons to doubt this assumption. The hate speaker, like any other speaker, exercises a right to autonomy; to speak without any hindrance or intervention on the basis of their chosen life. In this sense, the exercise of this right concerns both the formal and actual capacity of autonomy. That is to say, they can speak because they have the formal capacity but at the same time, the actual capacity to facilitate their speaking. Therefore, it is not easy and perhaps even impossible to

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distinguish between the exercise of a formal capacity and an actual capacity. That is why we need to consider both sides of autonomy as complementary to one another. Having said this, Ed Baker’s argument, by ignoring this dependency between the two forms of autonomy, is prone to prioritize the interest of the speaker over the listener. Ed Baker thinks hate speech as protected speech does not interfere with anyone’s formal autonomy but only substantive autonomy and implies that we can compromise the interference with the substantive autonomy of others. In this sense, speakers’ interests are prior to the interests of the listeners and the persons targeted by hate speech. Nevertheless, in the case of hate speech, the formal autonomy of the targeted persons is clearly compromised too since formal autonomy is in need of actualization through speaking and this may not be possible for the targeted persons due to the climate of hatred and fear that they have to face.

7.5

Political Correctness and Hate Speech

Political correctness is often referred to in relation to the limits of free speech in our contemporary world alongside hate speech. In politics, academia, media, literature, arts and corporate life, political correctness has been a popular concept in the last couple of decades in terms of how we should regulate our daily interactions and communication. However, it has mostly come to the agenda as a popular concept within academia in North America and Europe, beginning in the early 90s, with the introduction of speech codes on campuses amidst the debate concerning the extent to which what might be called racist, sexist and transphobic speech can be allowed in campuses. Interestingly, people from various political backgrounds refer to political correctness in relation to whether it is beneficial or harmful to free speech. It is possible to observe right-wing politicians claim that political correctness is against free speech rights as well as liberal and left-wing activists supporting it as a justifiable ground to restrict free speech. As Scott puts it firmly, today it is the children and grandchildren of the Berkeley radicals, who campaigned for the institutionalization of free speech in universities in the 60s, that argue for political correctness and no-platforming of right-wing views in universities (Scott 2016, 417). Lately, especially as part of the Black Lives Matter Protests, the questioning of institutionalized racism on university campuses has gained momentum. For instance, the students has been demanding that Oriel College at Oxford University take down the statue of Rhodes, who had connections to colonialism and slave trade. We can name many other political correctness policies which have been initiated by students for the time being such as no-platforming and safe spaces as well as formal ones administered by campus authorities such as speech codes. The capacity of these practices of political correctness to lead to a crisis of free speech on campuses is doubtful, yet the agenda of political correctness lingers as popular as ever in academia especially in Europe and North America.

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In this section of the chapter, I intend to analyze the characteristics of political correctness as a principle and whether political correctness can be the only principle to regulate free speech. I am particularly concerned with the boundaries of political correctness; do politically incorrect speech and hate speech necessarily overlap and if not, why. Second, I will investigate the possible implications of this analysis for the regulation of free speech in general. Let me begin by stating that I do not aim to address the specific practices of political correctness in all different realms of social life since there could be many different versions of speech codes in different institutions. Rather, I would like to discuss political correctness from a conceptual and normative perspective to point out the challenges that it might pose in relation to the limits of free speech–that is, if we accept political correctness as a principle that should govern the way we speak. In this sense, I shall argue that political correctness, taken as a principle, might be too restrictive and even oppressive and this is due to its inherent conceptual ambiguity. That is to say, the boundaries of political correctness as a principle are too porous, and they tend to absorb some speech restrictions which are tolerable from the perspective of many justifications of free speech. At the surface level, political correctness as a concept addresses that one should speak in a politically correct manner without specifically referring to any contentwise indication for a speech act. In this sense, it is like an empty bag which one may fill with many different types of politically correct speech by arbitrarily excluding many other types of politically incorrect speech. It always leaves us with puzzlement on what makes a speech politically incorrect and how one may justify the exclusion of politically incorrect speech. In this sense, it is an empty signifier which does not refer to any actual object. Why does this semiotic emptiness have to pose a problem? It poses a problem because it tends to be interpreted by society as a principle which is self-descriptive, almost containing a well-defined boundary that has the capacity to distinguish certain speech as incorrect and certain speech as correct. In other words, we tend to reconceptualize the boundaries of the principle as if it defines the acceptable and tolerable speech by excluding the intolerable speech. Quite often, reconceptualization is a matter of contextual political needs, ideological preferences and hegemonic and dominant cultural codes. Therefore, we might end up imposing oppressive speech codes in the name of universal political correctness. But aren’t all concepts and principles empty and in need of reconceptualization? There is a certain truth in this inevitably. Concepts such as people, democracy, republic, etc. are concepts that are also normatively loaded and subject to reinterpretation through history, culture and class struggle. Nevertheless, the situation gets complicated when we treat a historically and culturally defined concept as a universal principle. I do not mean principles do not exist and I am clearly not after any relativism such as the one that Stanley Fish defends. Principles do exit and they are normative and universal in their scope such as the principle of equal autonomy and free speech. For instance, the principle of free speech signifies that free speech is a universal right of every individual that should be given utmost priority compared to other values. Similarly, the principle of equal autonomy signifies a universal

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capacity of each individual to choose and act on the basis of their chosen life. We can hardly argue that political correctness implies a universal moral standard as free speech and equal autonomy do. It rather aims to regulate the way we speak but it is far from being self-descriptive as we tend to assume. In line with the above argument, the semiotic emptiness of political correctness, we might also claim that the boundaries of political correctness are too porous, and thus it has the potential to include many speech acts that are intolerable as politically correct as well as many speech acts that are perfectly tolerable as politically incorrect. In our contemporary political and social settings, we often see that the boundaries of politically correct speech are interpreted narrowly. In other words, politically correct speech both excludes offensive speech and hate speech at the same time. Actually, I believe it is often the offensive speech that is the target of the political correctness principle rather than hate speech. Offensive speech, due to its own ambiguous nature, is a problematic concept to define the limits of free speech. I addressed this issue in detail before in this chapter by contrasting the defining features of offensive speech and hate speech. Relying on offense only, a subjective mental state, to define the limits of tolerable speech might be too restrictive and even oppressive given the specific conditions of a political environment. There can be cases that political correctness clearly addresses the exclusion of hate speech especially through well-defined hate speech codes which aim to regulate hate speech rather than any type of offensive, disapproved, ignorant or wrong speech. Nevertheless, even in these cases, the motivation should not be to limit speech but to allow room for people to speak and discuss as freely as possible without creating a hostile climate of hate. Perhaps it is even better to frame speech codes, if we need any, without referring to the terminology of political correctness but referring to hate speech by defining the boundaries of hate speech as clearly as possible. In other words, instead of political correctness, hate speech could be a justifiable and more solid ground to restrict and regulate our speech. I think one might argue there are good reasons to be skeptical of even hate speech codes. Trying to find a principled basis to distinguish between speech-suppressive forms of political correctness and other types of political correctness might be viewed as a futile attempt. As Heidi Kitrosser warns us, codes that restrict hate speech may logically distract listeners from lessons that could otherwise be drawn from that type of speech and suppression may turn hateful speakers and their messages into causes that attract widespread interest (Kitrosser 2017, 2053). I believe both of these claims are plausible but they are not good enough reasons to argue against well-defined hate speech codes that aim to limit grave harm against minorities. We do not need to listen to harmful and hateful racist speech in order to learn lessons on how to speak and respect each other and moreover, the hateful opinions becoming popular as a result of suppression is an empirical claim which is hard to prove. There is another argument that Kitrosser raises against hate speech codes which is more powerful than the ones stated above. She argues: “. . .given human fallibility and the tendency of governments to abuse power, it is dangerous to empower authorities to pick and choose when speech content is sufficiently harmful or lacking

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in value as to justify its suppression.” (2017, 2037). Actually, this is an argument against hate speech regulations in general and is not only concerned with speech codes. First of all, it is often true that governments and administrators tend to abuse power but most of the time the power is abused to exclude or manipulate minorities and the abuse operates through hate speech and other means of silencing. As I have argued elsewhere, governments might use their power to silence speech that they do not favor by using speech regulations, but the only way to prevent this is to deepen the conditions of democratic control of power in a society.8 Second, no institution is infallible and it is not possible to define the boundaries of free speech perfectly either. Nevertheless, the harm that is caused by racist hateful speech to the lives of minorities weighs more than the impossibility of defining the limits of free speech without any mistake. What is the use of political correctness? Is it a totally non-functional principle as far as limits of free speech are concerned? This is quite a general question which one may only answer at a level of vague generality. Taking this risk of being too vague, I shall claim that political correctness can have importance as a value in public interactions in society but it is far from being a principle which law should merely rely on. Instead, I believe, hate speech can draw a more concrete line in relation to the limits of free speech if we define the boundaries and meaning of what hate speech amount to. Nevertheless, we need to take into consideration many factors in regulating hate speech too; such as the nature and scope of the harm in question, interests of the targeted persons and listeners as well as the context and circumstances of the social environment. Political correctness is too vague and has over-porous boundaries that might lead to the categorization of some tolerable speech as incorrect. In line with the above, it can be argued that political correctness can help develop and maintain a civic public culture based on respect in our daily communications regardless of its infeasibility and unreliability in the legal regulation of free speech. The manner in which we communicate with each other as members of multicultural democratic societies matters and this is especially so in public life, be it political communication or not. A politically correct morality that recognizes the free and equal status of persons as members of society can have a positive impact in tackling hate speech and offensive speech through moral learning in the long run. Most moral learning happens in educational institutions as well as our daily interactions at various social and civic institutions and encouragement of a politically correct language is significant in this respect.

See Devrim Kabasakal Badamchi, “Nefret Soylemi Ifade Ozgurlugunun Bir Parcasi midir?”, Felsefe Dunyasi, 2015, Summer, 61, 68. (“Is hate Speech Part of Freedom of Expression?”)

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7 Hate Speech and Limits of Free Speech

Offensive Speech

Offensive speech has caught the attention of the political theorists mostly after the Rushdie Affair in the United Kingdom. The publication of the Satanic Verses generated a widespread reaction from the Muslim communities in Britain and around the world which led to debates on whether expressions offending religious beliefs should be granted the protection of the state. Moreover, the Jyllands- Posten Cartoons in 2005 constituted another significant instance regarding offensive speech in the context of religious pluralism. The 12 cartoons about prophet Muhammed published in a Danish newspaper was received with a continuing reaction from both religious and secular authorities in Denmark and abroad. I shall not delve into the contextual details of these controversies here. Rather, I intend to outline some of the arguments developed by certain scholars regarding the status of the offense in relation to the limits of free speech. Joel Feinberg published his Offense to Others in 1985, a few years before the Rushdie Affair broke out. He is perhaps one of the few exceptions who recognize the offense principle as a candidate to restrict speech under certain conditions. Unlike most thinkers who question the status of offense as a limit to free speech, he investigates the specific circumstances of an offense principle which can guide some legislative decisions. He points out four standards against which the seriousness of the offense can be measured. The first standard refers to the intensity, duration and extent of the offense; the more intense, durable and widespread of an offense is, the more serious it is. The second is reasonable avoidability; the more it is difficult to avoid an offense without serious inconvenience to oneself, the more serious it is (Feinberg 1985, 34–35). Third, offensive states that were voluntarily incurred do not fall under the offense principle. And lastly, the offense that occurs due to the abnormal susceptibility of a person to the offense is not counted as a serious offense (Feinberg 1985, 34–35). Feinberg suggests that the above standards must also be measured against the reasonableness of the offense that is conducted. Several factors determine whether an instance of offensive conduct is reasonable such as the personal importance and social value of the conduct and whether it is a matter of free expression. Thus, Feinberg states: “expressions of opinion, especially about matters of public policy, but also about matters of empirical fact, and about historical, scientific, theological, philosophical, political, and moral questions, must be presumed to have the highest social importance in virtue of the great social utility of free expression and discussion generally, as well as the vital personal interest most people have in being able to speak their minds fearlessly.” (Feinberg 1985, 44). In other words, the personal and social significance of the offensive conduct is determined by the priority of the principle of free expression. Feinberg openly declares that no degree of offensiveness in the expressed opinion can lead to the automatic restriction of the speech even though in some occasions, the manner of the

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conduct, as opposed to its substance, might have sufficient weight (Feinberg 1985, 44). He adds to the above, three more standards to judge the reasonableness of the offensive conduct: the presence of alternative opportunities that would diminish the offensiveness of the conduct, whether the conduct is done with malicious intent and the location or setting of the conduct, which may or may not make the conduct less offensive (Feinberg 1985, 44). Taking all of these six standards into consideration, on Feinberg’s view, the reasonableness of an offensive conduct can be strictly judged and determined, especially in line with the priority of the importance of free expression for the offender and the society. I believe Feinberg’s offense principle aims to draw the boundaries of offense on a solid basis so that free expression will be respected and retain its value in a democratic society. His view on balancing the reasonableness of the offense with the seriousness of the offense makes sense, since he does not wish to jeopardize free expression for the sake of limits on speech. In line with this, I believe he intends to appeal to a definition of offense which is more objectively recognizable and acceptable by most reasonable persons. Nevertheless, this attempt leaves Feinberg’s offense principle almost non-functional, to the degree that it becomes difficult to think of an instance of offensive conduct which can restrict free expression. In other words, the standards to determine the seriousness and the reasonableness of offense make the offense principle itself obsolete. Why do we need an offense principle if we do not recognize offense in its different dimensions as limiting free speech? What I mean is, his offense principle is restrictive to the degree that it does not leave a space to any effective offense that can actually restrict free speech. Having said this, nothing I have mentioned so far should lead one to think we need theories to limit free speech. Contrarily, what I hope to clarify is that any limits to free speech should be justified on firm grounds and offense alone does not provide this justification. I already addressed this quality of offense in the first section of this chapter (7.2). In line with this, my criticism of Feinberg has to do with the non-functionality of offense as a concept to limit free speech in the first place. Offense is a concept that is vague and often times subjectively defined. The attempt to draw its boundaries does not make it a firm justificatory ground to censor and regulate free speech. We might mention specifically Peter Jones and Robert Post as two prominent thinkers who question the relevance of the offense principle alone in debating the limits of free speech. Peter Jones refers to the principle of respect for beliefs as a candidate to ground the claims for protection for beliefs within the context of multifaith societies (Jones 1990). He argues that in the cases such as Danish cartoons, the basis of the claims for the legal regulation of the speech is not merely offense as a negative mental experience caused by the offensive publication but rather, a perception of disrespect towards the beliefs of the offended (Jones 2011, 84–86). Furthermore, he asserts that “. . .respecting beliefs is not about causing or avoiding certain mental states in others. It is about treating people in a right or wrong way, and the rightness or wrongness of that treatment turns upon the character of the treatment itself rather upon the mental state it induces in people.” (Jones 2011, 87). Therefore,

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the claims regarding the Danish Cartoons address a wrongness of treatment as a matter of principle, because the Danish Cartoons, in the eyes of the offended, violate the principle of respect for beliefs of those who are equal and free persons in a democratic society. Jones is aware of the practical problems that might follow with the invitation of legal regulation on the basis of the respect for beliefs. He accepts that respect for beliefs is just one principle which has to compete with others in the realm of free expression and there is good reason for the reluctance of mobilizing law on the basis of respect for beliefs (Jones 2011, 89). However, he rightly emphasizes that our public concerns are not limited to the law and that we should also be concerned about how to treat one another as citizens within the law. Jones’s analysis is sound in pointing out that offense cannot be the only ground of the claims for censorship or regulation of speech in controversies such as the Danish Cartoons. Respect for beliefs can be one of the principles to which people can appeal in such controversies, however, I share his concern about initiating any regulative legislation on speech directly as a result of respect for beliefs. Respect for the beliefs of others can be one of the guiding principles in our daily public interactions as citizens. Claims of respect for the beliefs cannot have ultimate superior weight over free expression and in most situations, it has to compete and be balanced out with other values such as the priority of the free expression of public political speech. Robert Post opposes the legal regulations of speech on the basis of religious offense since for him, these regulations are not compatible with the democratic legitimacy principle. He claims that the state loses its legitimacy for those who do not believe in the truths that the blasphemy laws protect (Post 2007, 78). In other words, the principle of democratic legitimacy requires that each citizen should be able to recognize the decisions as their own and the blasphemy laws prevent this from happening. Post is also against hate speech laws on the basis of the principle of democratic legitimacy. I shall cover his views on this issue in detail in the last part of the chapter. I agree with his criticism of the blasphemy laws because these laws protect people’s beliefs who believe in the truths which the laws protect. Atheists and people from different faiths that are not protected by the blasphemy laws will have the right to question the legitimacy of the decisions; i.e. decisions regarding the regulation of speech with respect to such laws. Nevertheless, this does not necessarily follow up with the conclusion that hateful speech against beliefs—religious or not—should not be regulated on the basis of the democratic legitimacy principle. Hate speech that targets a group of people on the basis of their religion might be subject to regulation under certain circumstances, because hate speech aims to exclude the group of people it targets from public deliberation. Christian Rostboll and Sune Laegaard are scholars who contributed to the debate on offensive speech and the limits of free speech by focusing particularly on the Danish Cartoons case. Rostboll, like Jones advances his argument on equal respect and indicates that the contextual conditions in the Danish Cartoons case were far from fostering the conditions for respect among people from various diverse communities. For him, this is because autonomy was mainly understood by the actors—

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especially the Danish authorities—as a character ideal and not as a capacity in human beings (Rostboll 2009). For Rostboll, the justification of freedom of speech from autonomy as a character ideal might lead to an arrogant stance towards others. In line with this, Rostboll mentions: “some of the comments of Jyllands-Posten’s editors and those who supported them exhibited a great degree of arrogance and was based on the idea that some Muslims lack a critical distance to their faith—while the editors saw themselves (and the Danish majority) as fully enlightened and as holding a critical distance to their commitments (Rostboll 2009, 630). For Rostboll, this reasoning fueled the pervasive hateful discourse which was initiated by powerful groups against a minority who already have felt discouraged from participating in society as free and equal persons. Rostboll thinks another version of autonomy, which is a Kantian idea of autonomy as equal capacity, is more compatible with the idea of equal respect. Respecting autonomy as a shared human quality requires every person to recognize others as free and equal participants in public deliberation, both as listeners and speakers (Rostboll 2009, 637–638). I think Rostboll’s view on autonomy as equal respect as opposed to a character ideal which emphasizes autonomy as an individual selfreflection has a contextual relevance in multi-faith and multicultural societies. It has the potential to be endorsed by most faiths as a reasonable value not only due to its lack of arrogance towards others but also as an ideal which can be justified from within different worldviews. Like most of the scholars I mentioned so far in this section of the chapter, Sune Laegaard thinks that the case of the Danish Cartoons cannot be viewed as solely a matter of offense to religious sensitivities, and that offense alone cannot provide a justificatory ground for the restriction of freedom of expression. Given this, he endeavors to answer whether there was something morally problematic in the publication of the cartoons that would justify the restriction of freedom of expression. He contends that the reasons for the restriction of the publication of the cartoons are based on the claims that have to do with the contextual political climate and the negative reactions of the majority to the responses of the Muslims to the cartoons (Laegaard 2007, 490). In other words, the problem was not the cartoons and their publication but the contextual factors that contributed to the feeling of offense. I believe Laegaard is right in his argument against offense as a justification for the regulation of free speech. Legislative regulation requires a strong justification to limit free speech and we have good reasons to be on the side of free speech. Nevertheless, this does not mean offense should not be taken seriously in public life. In our public interactions, we need to be aware of the negative impact that contextual factors might have on the exercise of the rights to free speech of persons from minority groups. It is important to sustain the conditions of an inclusive democratic deliberation and the only way to do this is to facilitate the conditions of a public culture that reflects the principle of respect for the equal and free status of persons.

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7 Hate Speech and Limits of Free Speech

Hate Speech Legislation and Theories of Free Speech

This section of the chapter has two aims: first, it intends to lay out the main features of contemporary hate speech legislation in Europe and jurisprudence in North America (the US and Canada). Second, it intends to examine whether hate speech laws are compatible with free speech rights and specifically describe how the proposed framework of this book, namely the double-grounded principled approach, considers hate speech legislation in relation to the limits of free speech. In my analysis of hate speech laws in Europe and North America, my remarks might appear general, yet I do not aim for an essentialist comparison between the two continents. I will rather address the striking differences with respect to the consideration of hate speech at the judicial level between a doctrinal tradition of hate speech laws (Europe and Canada) on the one hand and a civil-libertarian position on hate speech (United States) on the other.

7.7.1

Hate Speech Legislation in Europe and North America

7.7.1.1

European Response to Hate Speech

In this section, I intend to have a look at some of the major trends in hate speech legislation within Europe; mostly at the transnational level. It is beyond the scope of this section of the chapter to separately analyze the current legislation in each country in Europe. Moreover, focusing mainly at a general European level provides us the opportunity to spot and examine the current common perception and policies regarding hate speech. After WWII, the motivation to deal with anti-Semitism required anti-racist speech regulations in Western European states such as Germany, France and a number of other countries. Especially after the ratification of the 1965 UN Convention on the Elimination of Racial Discrimination by the European states, anti-racism legislation was enacted in many countries (UK 1970/76, Denmark and Netherlands 1971 and France 1972) (Kumar and Riegner 2020, 9). Moreover, the 1950 European Convention on Human Rights has provided a framework—with its article 10 which protects freedom of expression— for the limitation of speech particularly through the European Court of Human Rights’ decisions. The court has sided with member states’ decisions on justifying hate speech legislation by referring to article 17 (abuse of rights) or limitation clause article 10(2). (Kumar and Riegner 2020, 10). Issues such as “Holocaust denial, insults of immigrants, the glorification of terrorism and disruption of ethnic peace were left to the member state’s margin of appreciation” (Krumar and Riegner, 10). As a more recent development, it is important to point out the significance of the Framework Decision 2008/913/JHA enacted by the Council of Europe in 2008 on combating certain forms and expressions of racism and xenophobia. The Framework

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decision aims to bring a certain level of harmonization to the hate speech law in Europe with its bindingness across Europe. “The Decision requires member states to criminalize not only incitement to violence and hatred against groups defined by race, colour, religion, descent or national or ethnic origin. It also requires criminal sanctions for publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes under international law if the act risks inciting to group-based violence or hatred” (Krumar and Riegner, 11). Unlike the Framework Decision, the EU Charter of Fundamental Rights has limited bindingness in its scope. The European Union incorporated the Charter of Fundamental Rights into its law in Lisbon in 2009. Even though the Charter fully binds EU organs, it applies to the member states only to the extent that they implement union law (Art, 51 (1)) (Kumar and Riegner, 10). During the last couple of decades, there has been a growing interest in many European countries in establishing common/similar legislative policies against hate speech. This has become apparent especially with the widespread presence of online hate speech transnationally. As a response to this current need, Europe has begun to move towards a transnational privatized regulation to deal with illegal hateful content in the digital world. In line with this, a Code of conduct was introduced in 2016 as an agreement reached by various companies such as Facebook, Microsoft, Twitter and YouTube, later joined by Instagram, Google+ until its shutdown in April 2019, Snapchat, Dailymotion and Jeuxvideo. As mentioned by Cavaliere, These intermediaries have bound themselves to prohibit incitement to violence and hateful conduct in their community guidelines; to provide for flagging mechanisms to allow users to submit notices and set up clear and effective procedures to review any such notifications they receive; and to review the majority of them within 24 hours ‘against their rules and community guidelines and where necessary national laws. After review, platforms may decide to remove or disable access to such content. (Cavaliere 2019, 282)9

Even though this conduct was legally sourced by the 2008 Framework Decision of the Council of Europe, there is a certain level of ambiguity on how and according to what standard the content will be assessed. Is it the community guidelines and the company’s own rules or is it the national laws that will be considered as a legal ground to assess the content? In 2017, the Commission published a communication that invites the companies to provide clear content policies. The Communication clarifies that the Framework Decision does not provide a full harmonization of legal practices on hate speech by emphasizing that the legality or illegality of specific content is determined by the EU and national laws.10Moreover, the Communication continues, “At the same time the online platforms “own terms of service can consider specific types of content 9

Please refer to the following address for the original text of the conduct:https://ec.europa.eu/info/ policies/justice-and-fundamental-rights/combatting-discrimination/racism-and-xenophobia/eucode-conduct-countering-illegal-hate-speech-online_en#theeucodeofconduct, Accessed on 7 September 2020. 10 Commission, ‘Tacking Illegal Content Online: Towards an Enhanced Responsibility of Online Platforms’ (Communication) COM (2017) 0555 final (the Communication), p. 16

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undesirable or objectionable.”11 As Cavaliere suggests, this provides two distinct kinds of ‘bad speech’: one determined by the EU and national laws and one defined by the companies’ own community guidelines (2019, 283–284). In June 2017, the German Parliament passed an Act to Improve the Enforcement of Rights on Social Networks (The Network Enforcement Act). The Act applies to the social network companies which have more than two million followers12 such as Facebook, Twitter and YouTube. The Act requires the companies to remove instances of “clearly illegal” content within 24 h after receiving a user’s complaint.13 In case the illegality of the content is not clear, the companies have to complete the review process within the 7-day framework. “In determining the illegality of content, the Act refers to the provisions of the German Criminal Code on, amongst others, the dissemination of propaganda material or use of symbols of unconstitutional organisations, the encouragement of the commission of a serious violent offense endangering the state, the public incitement to crime and the incitement to hatred.” (Alkiviadou 2019, 33). Furthermore, the social networks that fall within the scope of this legislation have to maintain a domestic agent to respond to the authorities in Germany. Failing to do so may result in a fine of up to five million euros. Besides the transnational attempt of regulating online hate speech at the European level, the above-mentioned legislation enacted in Germany is important especially because it is a national reaction which puts the burden of liability and responsibility on the private companies with the force of the domestic law. The criticisms regarding the possible chilling impact of this Act on free speech are reasonable considering the steep fines in the case that social network companies fail to respond to the requests of takedown and restrictions. There is a possibility that the chilling impact might be reinforced especially after the draft bill passed by the Federal Government on 1st April 2020 which opens the way to disclose the information and identity of the users by the social network companies. According to the amendment made to section 14 of the Telemedia Act, the social network companies might be put under the obligation of disclosing information about the subscribers by court order with the request of the injured party.14This change might facilitate the conditions for policing by the companies, which is obviously not their profession. Given its draconian measures, this Act has set an example for other countries as well. For instance, Turkey passed a law in July 2020 which is inspired by this German legislation. I examined the latest Turkish legislation in Chap. 6 in detail, therefore I will not take time here to do so. However, it is obvious that the political context of the country has a huge impact on how the legislation on hate speech is

11

Ibid. Article 1.1. (2) of the Act. https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/ Dokumente/NetzDG_engl.pdf?__blob¼publicationFile&v¼2 (Accessed on 29 September 2020). 13 Article 3.2 (2) of the Act. https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/ Dokumente/NetzDG_engl.pdf?__blob¼publicationFile&v¼2 (Accessed on 29 September 2020). 14 See https://germanlawarchive.iuscomp.org/?p¼1245, article 2 Amendment of the Telemedia Act. (Accessed on 1 October 2020). 12

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operated and Turkey seems to be an example in this respect given its Internet Act carrying the potential to censor tolerable free speech. Understandably, Europe has taken a transnational response against online hate speech given that the impacts of hate speech are global. Nevertheless, I believe it is important to set the terms of what a tolerable/intolerable bad speech on the basis of the public legislation at the European level. Privatized methods of regulation and censorship, such as the current transnational practice, might prove too restrictive in terms of free speech rights. The private code of conduct of the companies might not necessarily overlap with the legal boundaries drawn by the Human Rights Law. In other words, the Code of Conduct at the European level should make it clear to the companies that the transnational human rights and free speech rights legislation are the norms of regulation and that the community guidelines of the companies should adhere to the European law.

7.7.1.2

United States and Canada on Hate Speech

The US does not have any distinct hate speech legislation at the federal level. However, there are two exceptions to the First Amendment protections in the jurisprudence of the Supreme Court: “fighting words” and “the incitement of criminal or violent activity”. The motivation behind these exceptions is to secure public order and prevent imminent harm that might come from the commissioning of illegal acts or violence which is likely to be directly incited by the speech (Martin 2018, 485). Below, I point out several landmark decisions within free speech jurisprudence to illustrate the US Supreme Court’s position on hate speech. One of the landmark cases that brought the fighting words onto the agenda in free speech jurisprudence is the 1969 Brandenburg v. Ohio case. Here, the Supreme Court upheld the right of the Ku Klux Klan to campaign at the rallies for the return of all Jews to Israel and all African-Americans to Africa. A Ku Klux Klan Leader named Brandenburg was convicted under an Ohio syndicalism statute with the charge of advocating unlawful and violent terrorism as a means of industrial or political reform and voluntarily assembling with groups and persons to teach criminal syndicalism.15The Supreme Court decided that the advocacy of Brandenburg did not intend to incite direct action towards those ends and at the same time did not trigger a fighting word exemption. Therefore, it must be protected political speech under the First Amendment. It is difficult not to agree with Levin who claims that this decision did not consider the historical conditions in the 60s, in the age of the civil rights movement and in this respect, did not consider the rights of listeners (Levin 2010, 177). Another case which exemplifies the ambiguity around fighting words is the 1992 R.A.V v. City of Saint Paul. Some teenagers burned a cross on the lawn of a black family. Two of the teenagers were charged under a local ordinance which prohibits

15

https://supreme.justia.com/cases/federal/us/395/444/ (Accessed on 8 September 2020).

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the display of a symbol which arouses anger, alarm or resentment in others on the basis of race, color, creed, religion and gender.16The ordinance aimed to cover the speech in the scope of fighting words and not politically protected speech. However, the US Supreme Court decided that the ordinance was not viewpoint neutral and prohibited certain speech that targets certain groups of people. In other words, the Court agreed that the ordinance should be struck down due to its imposition of a content restriction on speech (Levin 2010, 177). A more recent case that is considered by many as a case of fighting words and hate speech is 2003 Virginia v. Black. A Virginia law was at issue which made cross burning a criminal offense to intimidate a person or groups of persons in public or on a private property. The law further indicated that the burning of a cross itself was prima facie evidence of the intent to intimidate17 (Craig 2018, 491). The Court struck down the Virginia Law because of this clause that considers cross burning as the sole evidence of the intention to intimidate. Justice O’Connor stated that a law that permits the state “to arrest, prosecute and convict a person based solely on the basis of cross burning itself. As so interpreted, it would create an unacceptable risk of the suppression of ideas.”18She further pointed out that the act of burning a cross might mean different things—engaging in political activity as well as in constitutionally prescriptible intimidation—and the prima facie evidence provision blurs the lines between these meanings. Given the decisions mentioned in the above cases, one can infer that there is something wrong in principle in the Supreme Court’s treatment of hate speech and this has to do with a choice made in favor of the rights of the speaker over the rights of the listener. Especially in the cases of R.A.V v. Saint Paul and Virginia v. Black, we have seen that for the Supreme Court, content restriction is a justification to strike down local hate speech statutes. This kind of view makes any hate speech provision impossible by definition. It is because this view is not concerned much about the right to equal protection of persons and the possible relation between hate speech laws and the constitutional rights of equal protection (Levin 2010, 177, Craig 2018, 495). Moreover, the ambiguity inherent in the concept of “fighting words” is not helpful for identifying what counts as hate speech; it might be the case that some intolerable hate speech cannot be regarded as fighting words and therefore might be considered as protected speech. That is to say, in the absence of a federal code of hate speech/crime, a vague concept such as fighting words blurs the line between what is tolerable and what is not. The Canadian approach to hate speech can be considered as an example of an approach that balances the right to equal protection with the right to free speech. Unlike the American experience, “Canada has seen the enactment of hate speech laws at both the federal and the provincial level, in both criminal law and in human

16

https://supreme.justia.com/cases/federal/us/505/377/ (accessed on 8 September 2020). https://supreme.justia.com/cases/federal/us/538/343/ (accessed on 8 September 2020). 18 https://supreme.justia.com/cases/federal/us/538/343/ (Accessed on 8 September). 17

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rights statutes, and they have largely survived numerous constitutional challenges.” (Craig 2018, 496). The Criminal Code of Canada defines a crime called ‘public incitement to hatred’. Section 319 (2) states that “every one, who, by communicating statements, other than in private conversation, willfully promotes hatred against any identifiable groups is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.”19 It continues that “no person shall be convicted of an offence under subsection (2), (a) if he establishes that the statements communicated were true; (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text; (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.”20 The above-mentioned section 319 of the Criminal Code has been challenged several times as constituting a facial violation of free expression on the basis of the Canadian Charter of Rights and Freedoms section 2(b) that reads “Everyone has the following fundamental freedoms: (b)freedom of thought, belief, opinion, and expression, including freedom of the press and other media communication.”21 The most notable case that challenged section 319 was Keegstra in 1990 where the Supreme Court upheld the Criminal Code of hate speech legislation in Canada. In the case of Keegstra, the facts involved a high school teacher in Alberta who propagated antiSemitic views as part of the school curriculum. When his actions came to light, he was charged with the ‘wilful promotion of hatred ‘on the basis of the hate propaganda statute then in place. The Court upheld the hate speech code by a narrow 4–3 vote. The Court stated that the narrowly defined hate speech prohibited by 319(2) was quite distant from the core values that support free speech and that indeed hate speech can hamper and undermine free speech.22 Human rights legislation, both at the provincial and federal level, have hate speech provisions which are broader in scope than the provision in the Criminal Code. These provisions have been challenged on the basis of the violation of 2(b) of the Charter and have been similarly upheld by the Supreme Court. (Craig 2018, 506). The two notable cases are Canada (Human Rights Commission) v. Taylor, 192 a case from 1990, and Canadian Human Rights Act, and Whatcott v. Saskatchewan Human Rights Tribunal, 193,a much more recent case. The facts of the first case involved a person who, as the leader of the Western Guard Party, distributed communications of a telephone number which played a recorded message that

19

Criminal Code of Canada, R.S.C., 1985 c. C-46, (last amended by S.C. 2017, c. 13), s. 319. Ibid. 21 Charter of Rights and Freedoms, Section 2(b). 22 Keegstra, [1990] 3 S.C.R at 761–763. 20

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depicted the Jewish people as conspirators controlling Canadian Society through drugs, schools, communism, etc.23 Initially, in 1979, the Human Rights Tribunal Court ruled that Taylor committed a hate crime since the Canada Human Rights Code prohibits the propagation of hate by telephone with the aim of discrimination against certain groups of people. In line with this, in 1990, the Supreme Court, decided that the prohibition of hate propaganda is consistent with the Charter of Rights and Freedoms and that there is no justification for the claim that 13(1) of the Canadian Human Rights Act violates the Canadian Charter of Rights and Freedoms. The case of Whatcott v. Saskatchewan Human Rights Tribunal involved the fact that a man named Whatcott distributed flyers containing discriminatory and hateful expressions towards LGBT individuals. In 2002 and 2003, several individuals filed complaints against these flyers. The Saskatchewan Human Rights Tribunal held that the flyers constituted a violation of the Provincial Human Rights Code which provides in section 14(1) (b) that “no person shall publish or display or cause or permit to be published or displayed, before the public any statement, publication, notice, sign, symbol, emblem or other representation that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.”24 Whatcott appealed to the Saskatchewan Court of Queen’s Bench which upheld the decision of the Tribunal. Later, upon Whatcott’s appeal, the Saskatchewan Court of Appeal overturned the decision deciding that the flyers did not expose any hatred against LGBT individuals. Upon this decision, the Saskatchewan Human Rights Commission appealed the decision to the Supreme Court of Canada. The Supreme Court decided that two of the flyers that Whatcott distributed constituted hate speech and could not be viewed as a free expression that should be protected. Moreover, it ruled that part of section 14 (1) (b) that prohibits hate speech is a reasonable limit in light of section 1 of the Charter but it struck down that part of the provision that prohibited speech that “ridicules, belittles or otherwise affronts the dignity” of a person as being too broad.25 Lately in Canada, there has been a growing interest in and need for developing a federal strategy to deal with online hate speech as well. The Standing Committee on Justice and Human Rights of the House of Commons published a report titled “Taking Action to End Online Hate Speech” in June 2019 as a result of a study it undertook to analyze the situation of online hate speech in Canada. In the report, it is suggested to take four important actions to combat online hate speech: “properly define online hate, track online hate, find a way to educate people on what constitutes online hate, have intervention mechanisms to combat online hate which both 23

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/697/index.do (Accessed on 10 September 2020). 24 Saskatchewan Human Rights Code, Section 14 (1)(b), p. 9. Available at https:// saskatchewanhumanrights.ca/wp-content/uploads/2020/03/Code2018.pdf (Accessed on 10 September 2020). 25 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12876/index.do (Accessed on 10 September 2020).

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involves working in consultation with Internet service providers and online platforms companies and penalizing them where they do not cooperate with government requirements.”26 This attempt can be viewed as a result of a global awareness with respect to the distinct impact and nature of the expression of hate online within individual states such as Germany; a country which has already enacted its own national code of conduct on online hate.

7.7.2

Do Hate Speech Laws Violate Democratic Legitimacy?

Above, I pointed out some features of the current situation in hate speech legislation and the judicial outlook on hate speech in Europe, the US and Canada. I have particularly avoided making essentialist culturalist comments which possibly might lead to false or exaggerated inferences that are far from reflecting the complexity of the reality with respect to the issue of the limits of free speech. In this respect, I agree with Heinze who claims that “cultural essentialism poses dangers on all sides of the hate speech debate: on the European side as well as the American; on the side of hate speech prohibitionists as well as the side of free-speech ‘absolutists’.” (Heinze 2009, 199). An essentialist free speech absolutist view might picture the US as a land of free speech just by pointing out that there are not federal hate speech laws or Europe as a place where freedom of speech is severely restricted. In parallel, an essentialist prohibitionist view might picture the US jurisprudence on free speech as totally non-democratic, disregarding the equal rights and liberties of all individuals and the European hate speech laws as the champion of substantive freedom and equality for all. Certainly, there are more grey areas rather than only black and white differences between the two cultural contexts. There are structural inequalities regarding the issue of race and also with respect to the social and economic status of people in the United States that prevent the exercise of free speech rights for all. Black Lives Matter protests which started in the aftermath of the killing of a black citizen by the police in Spring and Summer 2020 have addressed many dimensions of the racial injustice in the country. On the other hand, in Europe, despite the restrictive hate speech laws, free speech has been protected firmly by international human rights legislation as well as the laws in individual countries. Nevertheless, during the last couple of decades, the political and social spaces that were opened to minorities with the help of the egalitarian social welfare policies have begun to shrink due to the neoliberal anti-immigrant populisms in some countries of Europe. As you might recall, I discussed Heinze’s argument on hate speech laws as part of what I have called the ‘non-interventionist position’ in relation to the regulation of free speech in Sect. 7.3. Here, I refer to him regarding his criticism of the methodology of comparing different cultural and political contexts on the issue of regulating

26

https://www.ourcommons.ca/Content/Committee/421/JUST/Reports/RP10581008/justrp29/ justrp29-e.pdf p.39. (Accessed on 11 September).

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speech. Heinze’s warning about the dangers of essentialist reading of the differences between Europe and the US on hate speech legislation supports his argument that hate speech laws violate democratic legitimacy in long-standing and stable democracies. In other words, in the view of Heinze, we do not need hate speech laws as long as we have a stable democracy and therefore, just like the US, most European countries might not need these laws either. In line with his criticism of cultural essentialism, Heinze opposes Robert Post’s view that different cultural and historical contexts, such as in Europe and the US, will require different ways of dealing with hate speech regulations (Heinze 2009:183–203). For him, Post, by picturing the US and Europe as distinct idealized contexts, runs the risk of ignoring the real complexity and possible transfers between two traditions. I agree with Heinze’s criticism of Post’s methodology of comparison but disagree with the conclusion/implication of his argument that there is no need for hate speech laws in long-standing stable democracies. Below, first, I will explain why I agree with his criticism of Post. Robert Post, in his contribution to the prominent book Extreme Speech edited by James Weinstein and Ivan Hare, suggests that hate speech laws are mostly about restricting speech on the basis of civility norms in societies and different societies “will differently balance the use of law to sustain essential norms of civility against the use of law to safeguard the capacity of members of diverse domestic cultures freely to express themselves in public discourse.” (Post 2009, 136–137). Every society, as an entity composed of various diverse communities, has to find its own ways to deal with the problem of regulating speech on the basis of its acceptable appropriate norms in the public realm. Post thinks that this sociological argument can help us explain the sharp differences between the European and American approaches to the legal regulation of hate speech. Here, he suggests two hypotheses that might explain the reasons for the differences between the two contexts. The first hypothesis, he suggests, has to do with the differences in the need for political legitimation; idiosyncratic American values such as individualism and mistrust of the government together put pressure on public discourse to continuously legitimate political authority in the US (Post, 137). For him, the culture of political deference to political authority in Europe, as exemplified by the EU experience, prevented Europe from the continuous pressure of legitimation of political authority. The second hypothesis has to do with the different levels of the need to sustain a community identity in both contexts. Post outlines that the norms of individualism and the marketplace of communities tend to undermine the common norms of civility in the US especially in the realm of speech regulation. Interestingly, for him, “Americans feel far less pressure to use law to protect norms at issue in hate speech regulation than do the European counterparts, because American community identity depends far less on the maintenance of these norms than does European community identity”. (Post, 137–138). I will not oppose Post’s sociological argument since I think such an argument does not have to be necessarily essentialist. Hate speech laws can be regarded as reflections of drawing the boundaries of what is acceptable, tolerable and legitimate

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speech in public discourse and certainly there is a sense in which this boundary drawing is either inspired or imposed by the norms of civility in every society. This argument can have roots in the philosophy of law, sociology of law and philosophy of language. Nevertheless, I have to question the nature of the two hypotheses he suggests to explain the differences between Europe and the US. Put precisely, the two hypotheses illustrate what Heinze calls the essentialist and idealistic approach in comparing two contexts. Post presents Europe and the US as two radically different ‘ideal types’ that are composed of radically different traditions and cultures. This presentation is based on idealized assumptions about the political and socio-cultural values of these two traditions that manifest themselves in a black and white type of comparison. For instance, Post assigns radical individualism and mistrust of government to the American tradition whereas a strong need to protect community identity and a tradition of deference of political authority with the European tradition. Nevertheless, one may argue that these are idealized assumptions that do not pay enough attention to the diversity within both traditions and also the impacts of each culture on the other culture. In other words, Europe has a diversity of cultures and experiences within itself but at the same time, individualism and mistrust of government are classical liberal ideas that were generated in Europe and have been part of the public political culture of Europe for the time being. Moreover, Post’s assumption that hate speech laws serve to protect the community identity in Europe whereas the US does not need hate speech legislation for this purpose due to the diverse and open public space that endorses a marketplace of communities is also too idealized. Has the US always provided a diverse and open marketplace of cultures to communities where each community can be included and recognized equally? If so, how can we make sense of the racial and socio-economic injustices that have a negative impact on the legitimacy of political authority? As I aimed to demonstrate above, an essentialist and idealized comparison between different contexts is not helpful for both understanding and making normative judgments about hate speech legislation. I agree with Heinze’s comments on Post’s idealized assumptions also in this regard. Nevertheless, I depart from Heinze on his normative conclusion that hate speech laws undermine the principle of democratic legitimacy in long-standing stable democracies, be it in the US or Europe (Heinze 2016). I have already discussed Heinze’s argument at several points in this chapter. Here, I limit my argument to pointing out the reasons why I disagree with Heinze on this matter. This will also mean once more underlining the position of the double-grounded principled approach on hate speech legislation. To begin with, there is no doubt that free speech is an integral component of democratic legitimacy. It is only by way of free speech, we can participate fully in democratic authority as speakers and listeners. However, free speech is not just a requirement of formal freedom and equality but at the same time, it is a demand of substantive freedom and equality too. Hate speech harms the capacity of the targeted individuals to exercise their freedom as equal beings in the public realm. In other words, it undermines the conditions of substantive freedom and equality and in this

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respect, hate speech laws serve a function to protect the substantive freedom and equality of the minorities in the public realm. A civil libertarian position on hate speech, like the one of the United States, prioritizes the interests of the speaker over the interests of the persons targeted by hate speech. That is to say, the right of the targeted persons to equal participation in democratic authority is compromised by the hate speech on a civil libertarian approach. This is because the capacity of the targeted group to exercise the free speech rights is restricted due to the actual harms such as fear, loss of confidence and denial of identity generated by the climate of hatred. Put this way, hate speech legislation in Europe, in most situations, aims to establish an egalitarian public realm which enables the exercise of substantive freedom and equality of all. However, there is always a grey area regarding where to draw the line between what is tolerable speech and what is not concerning hate crimes. I think hate speech legislation must be clear on what counts as hate and whether and on what conditions the speech should be regulated. Overbroad definitions of hate, such as the ones in Blasphemy laws, including offense, might be too restrictive and harmful to the egalitarian purposes of democracy as opposed to serving it. This is not to suggest that offensive speech and speech that insults should be fully tolerated but legislation on the basis of mere offense, as I discussed previously in this chapter, might undermine the principle of democratic legitimacy. On the other hand, laws that restrict themselves with a well-crafted definition of hate can be compatible with the principle of democratic legitimacy. I am not a lawyer or a scholar of law and also not in the position of framing a model hate speech law. However, I believe we can look to some examples in the existing world to have a better idea of what might work, and Canadian criminal law and the Canadian Supreme Court jurisdictions seem to suggest some plausible examples of how to draw the boundary of what counts as hate speech.

7.8

Conclusion

In this (last) chapter, I tackled the issue of hate speech; whether hate speech is protected speech and how the proposed framework of this book applies to the issue of hate speech in terms of limits of free speech. I began by outlining the contemporary contextual relevance of hate speech debates and noted that we could observe two contextual circumstances that require us to discuss hate speech in relation to free speech in contemporary societies; pluralism and the changing nature of political speech. The fact of pluralism requires us to reflect on the limits of free speech; i.e. whether we can regulate hate speech without endangering our commitment to democratic legitimacy. Moreover, I added that the growing resort to hateful expression by politicians around the world necessitates us to think over the possible impacts of hate speech in the political realm. Then, in Sect. 7.2, I outlined the possible characteristics of what might be labeled as hate speech and distinguished hate speech from offensive speech by claiming that

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153

hate speech fosters an objective condition of discrimination and exclusion of the members of its target group whereas offensive speech refers to a subjective mental state. I then categorized the components of a hateful speech into four features by referring to Parekh and Brison. First, I noted, hate speech targets individuals due to their group membership displayed in differences of sex, race, ethnicity etc. Second, hate speech ascribes the target a set of constitutive qualities that are considered highly undesirable. Third, I continued, hate speech aims to exclude members of the target group from the realm of social and public relations and finally, I claimed that hate speech leads to either face to face vilification, group vilification or the creation of a hostile environment for the members of the targeted group. In Sect. 7.3, I outlined the features of some major theoretical views on hate speech in contemporary political theory literature by grouping them into three categories: consequentialist arguments, incompatibility arguments and non-interventionist arguments. I argued that the consequentialist arguments do not question the quality of hate speech as a matter of principle but do so as a matter of consequences of hate speech. Furthermore, as a response to the non-interventionist position, I argued, hate speech might seriously violate the substantive equality and autonomy of some minority groups, through constituting a climate of hatred. Finally in this section, I claimed that the proposed theoretical framework of the book, namely the doublegrounded principled approach, shares the same ground with Waldron’s thesis, which I called the incompatibility argument, against the protection of hate speech on the grounds of social dignity. Thus, I contended, hate speech should be regulated and it should be so for the principled reason that each person should be granted equal social standing in a democratic society. In Sect. 7.4, I addressed the question whether hate speech should be protected speech and if not, why. I re-emphasized that the double-grounded principled approach considers hate speech as non-protected speech and this is because hate speech does not recognize the free and equal status of persons in public deliberation and does not aim to contribute to democratic deliberation. Then, I answered some of the possible counter-arguments to my position on hate speech. Against the argument that exclusion of hate speech from public deliberation ignores the place of disagreement in politics, I underlined that hate speech aims to destroy its targets because of their identity and in this sense, is far from developing an argument based on disagreements which would qualify as a political speech. Secondly, I addressed the counter argument that hate speech regulation is contrary to democratic legitimacy. I emphasized that such a claim considers the interests of the speakers as significantly prior, to those of the listeners, which is not a fully justifiable claim from the principle of democratic legitimacy itself. Thirdly, I challenged the argument from autonomy which claims that hate speech does not violate the formal autonomy of any person and that is why it should be protected free speech. On the contrary, I argued, hate speech violates the substantive autonomy of its targets, which cannot be compromised given our commitment to democratic legitimacy. Sections 7.5 and 7.6, focused on political correctness and offensive speech respectively. I noted that political correctness cannot be a principle for regulating

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speech since it is a semantically empty concept and its boundaries are porous. Moreover, I underlined the point that offense alone is not a great candidate for the legal regulation of speech either. However, I added that a concern for offense can have a function in civic life in society in sustaining a culture based on democratic virtues that acknowledges the value of equal respect and toleration. Finally, in Sect. 7.7, I concentrated on hate speech legislation in Europe, Canada and the US and whether hate speech laws are compatible with democratic legitimacy. I contended that we have reasons to shy away from an essentialist view on the differences between different hate speech legislation on different continents. Nevertheless, I noted, a libertarian position like that of the US’s regarding hate speech prioritizes the interests of the speaker over the listeners which then damages democratic legitimacy. Furthermore, I emphasized that laws that restrict themselves with a well-crafted definition of hate can be compatible with the principle of democratic legitimacy.

References Alkiviadou, Natalie. 2019. Hate Speech on Social Media Networks: Towards a Regulatory Framework? Information & Communications Technology Law 28 (1): 19–35. Baker, Edwin. 2009. Autonomy and Hate Speech. In Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein, 139–157. Oxford: Oxford University Press. Billingham, Paul, and Matteo Bonotti. 2019. Introduction: Hate, Offense and Free Speech in a Changing World. Ethical Theory and Moral Practice 22: 531–537. Bonotti, Matteo. 2017. Book Review “ERIC HEINZE, Hate Speech and Democratic Citizenship. New York: Oxford: University Press, 2016, p. 248. ISBN: 9780198759027, £60 (hbk)”. Social and Legal Studies 26 (2): 276–280. Bonotti, Matteo, and Seglow Jonathan. 2021. Free Speech. Cambridge: Polity. Brandenburg v. Ohio, 395 U.S. 444. 1969. https://supreme.justia.com/cases/federal/us/395/444/. Accessed 8 Sept 2020. Brink, David. O. 2009. Mill’s liberal Principles and Freedom of Expression. In Mill’s On Liberty, ed. C.L. Ten, 40–61. Cambridge University Press. Brison, Susan. January 1998. The Autonomy defense of Free Speech. Ethics 108: 312–339. Brown, Alexander. 2008. The Racial and Religious Hatred Act 2006: A Millian Response. Critical Review of International Social and Political Philosophy 11(1): 1–24. Canadian Charter of Rights and Freedoms, Section 2(b). Cavaliere, Paolo. 2019. Digital Platforms and the Rise of Global Regulation of Hate Speech. Cambridge International Law Journal 8 (2): 282–304. Craig, Martin. Spring 2018. Striking the Right Balance: Hate Speech Laws in Japan, the United States, and Canada. Hastings Constitutional Law Quarterly 45 (3): 455–532. Criminal Code of Canada, R.S.C., 1985 c. C-46, (last amended by S.C. 2017, c. 13), s. 319. Commission, ‘Tacking Illegal Content Online: Towards an Enhanced Responsibility of Online Platforms’ (Communication) COM. 2017. 0555 final (the Communication), 16. Deveci Cem &Binbuğa Kınık Burcu Nur. 2019. Nationalist Bias in Turkish Official Discourse on Hate Speech: A Rawlsian Criticism. Turkish Studies 20 (1): 26–48. https://doi.org/10.1080/ 14683849.2018.1479961. Dworkin, Ronald. 2009. Foreword. In Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein, 139–157. Oxford: Oxford University Press.

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EU Code of Conduct Countering Illegal Hate Speech. https://ec.europa.eu/info/policies/justice-andfundamental-rights/combatting-discrimination/racism-and-xenophobia/eu-code-conduct-coun tering-illegal-hate-speech-online_en#theeucodeofconduct. Accessed 7 Sept 2020. Feinberg, Joel. 1985. Mediating the Offense Principle. In The Moral Limits of Criminal Law. Oxford: Oxford University Press. Ferrara, Alessandro. 2014. Democratic Horizon, 88–109. New York: Cambridge University Press. German Network Enforcement Act. https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/ Dokumente/NetzDG_engl.pdf?__blob¼publicationFile&v¼2. Accessed 29 Sept 2020. Heinze, Eric. 2016. Hate Speech and Democratic Citizenship. New York, Oxford: Oxford University Press. ———. 2009. Wild West Cowboys versus Cheese Eating Surrender Monkeys: Some Problems in Comparative Approaches to Hate Speech. In Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein, 182–203. Oxford University Press. House of Commons Canada, “Taking Action to End Online Hate”. https://www.ourcommons.ca/ Content/Committee/421/JUST/Reports/RP10581008/justrp29/justrp29-e.pdf, p.39. Accessed 11 Sept. Jones, Peter. 1990. Respecting Beliefs Rebuking Rushdie. B.J.Pol.S 20: 415–437. ———. 2011. Religious Belief and Freedom of Expression: Is Offensiveness Really the Issue? Res Publica 17: 75–90. Kabasakal Badamchi, Devrim. 2015. Nefret Soylemi Ifade Ozgurlugunun Bir Parcasi midir? Felsefe Dunyasi, Summer, 61, 68. (Is hate Speech Part of Freedom of Expression?) Supreme Court Judgments- Keegstra, [1990] 3 S.C.R at 761–763. https://scc-csc.lexum.com/scccsc/scc-csc/en/item/695/index.do. Accessed 21 Jan 2021. Kitrosser, Heidi. May 2017. Free Speech, Higher Education, and the PC Narrative. Minnesota Law Review 101 (5): 1987–2064. Kumar, Smarika and Riegner, Michael. Forthcoming 2020. Freedom of Expression in Diverse Democracies: Comparing Hate Speech Law in India and the EU. In Democratic Constitutionalism in Continental Polities: EU and India Compared, ed. Philipp Dann and Arun Thiruvengadam. Leagaard, Sune. 2007. The Cartoon Controversy: Offense, Identity, Oppression? Political Studies 55: 481–498. Levin, Abigail. 2010. The Cost of Free Speech-Pornography, Hate Speech and Their Challenge to Liberalism. New York: Palgrave Macmillan. Parekh, Bhikhu. December 2005–February 2006. Hate Speech- Is There a Case for Banning?. Public Policy Research 213–223. Post, Robert. 2007. Religion and Freedom of Speech: Portraits of Muhammed. Constellations 14 (1): 72–90. ———. 2009. Hate Speech. In Extreme Speech and Democracy, ed. Ivan Hare and James Weinstein, 123–138. Oxford University Press. R. A. V. v. St. Paul, 505 U.S. 377. 1992. https://supreme.justia.com/cases/federal/us/505/377/. Accessed 8 Sept 2020. Reid, Andrew. 2019. Buses and Breaking Point: Freedom of Expression and the ‘Brexit’ Campaign. Ethical Theory and Moral Practice 22: 623–637. Rostboll, Christian. 2009. Autonomy, Respect and Arrogance in the Danish Cartoon Controversy. Political Theory 37 (5): 623–648. Sabah. https://www.gzt.com/gazeteler/sabah-gazetesi-06-02-17. Saskatchewan Human Rights Code, Section 14 (1)(b), p. 9. Available at https:// saskatchewanhumanrights.ca/wp-content/uploads/2020/03/Code2018.pdf. Accessed 10 Sept 2020. Schmitt, Carl. 2007. The Concept of the Political, trans. by George Schwab. The University of Chicago Press. Scott, Peter. 2016. ‘Free Speech’ and ‘Political Correctness’. European Journal of Higher Education 6 (4): 417–420.

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Supreme Court Judgments-Canada (Human Rights Commission) v. Taylor. https://scc-csc.lexum. com/scc-csc/scc-csc/en/item/697/index.do. Accessed 10 Sept 2020. Supreme Court of Canada-Saskatchewan (Human Rights Commission) v. Whatcott. https://scc-csc. lexum.com/scc-csc/scc-csc/en/item/12876/index.do. Accessed 10 Sept 2020. The Network Enforcement Act. https://germanlawarchive.iuscomp.org/?p¼1245. Accessed 23 Sept 2020. Trump Defends Calling Coronavirus “Chinese Virus” – “It is not Racist at All”. https://www.cnbc. com/2020/03/18/coronavirus-criticism-trump-defends-saying-chinese-virus.html. Virginia v. Black, 538 U.S. 343. 2003. https://supreme.justia.com/cases/federal/us/538/343/. Accessed 8 Sept 2020. Waldron, J. 2012. The Harm in Hate Speech. Cambridge/London: Harvard University Press. Yeni Akit. https://www.gzt.com/gazeteler/yeniakit-gazetesi-03-04-17

Chapter 8

Epilogue: Reflecting on Free Speech in the Time of Covid-19

Abstract This chapter deals with how the Covid-19 pandemic can inform our understanding of free speech. I argue that the latest experience of the pandemic has demonstrated that the free flow of information is significant and this significance stems from free speech’s quality of being a requirement of the right to equal autonomy and the right of individuals to share the political power. The fact that we are equally autonomous individuals requires us to freely hear, read and listen to all possible information and opinions on the subject of Covid-19. In other words, only under the conditions of free speech, can we develop our own authentic opinions on the subject without imposition from the authorities. Second, the silencing and censoring attempts of whistleblowers by some authorities in different countries have demonstrated that it is important to criticize and monitor the state authorities’ activities and that the right to democratic protest is a primary right that cannot be suspended even during a pandemic. Lastly, I investigate how hate speech has escalated during the pandemic and what type of speech we should tolerate, also given the overflow of fake news and information. I contend that speech that is deliberately manipulative and speech that lacks a valid scientific basis and, at the same time, that calls for violence against a group of people cannot be tolerated. I add that we have less reason to be tolerant of hate speech than any type of fake information since hate speech involves hate, exclusion and even sometimes a call for violence. Keywords Free speech · Hate speech · Covid-19 · Pandemic · Racist hate speech

Saying the last word somehow signifies putting an end to contemplation, which is never actually the case, especially when you write on topics in the field of political philosophy. That is; the social and political context that you write in continuously changes and evolves and this leads you to rethink your theoretical tools in the light of the new circumstances. As I was about to complete the draft of this manuscript, the world has entered a global health crisis caused by a new coronavirus which has resulted in the death of hundreds of thousands of people. Lockdowns, social distancing measures along with travel restrictions have been enacted globally. As a result of the closure of businesses worldwide, thousands of people all over the world © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 D. Kabasakal Badamchi, Dimensions of Free Speech, Philosophy and Politics Critical Explorations 19, https://doi.org/10.1007/978-3-030-88319-5_8

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have ended up unemployed within just a few weeks. Many of us have been trying to understand the dimensions of the new reality that we are facing and interpret the imminent and possible future changes this crisis might bring to our lives. This latest pandemic imposed its reality on our minds very strongly due to the seriousness of the global situation at present and the possible consequences for the future of the human species. All the people of the world are now facing a common threat which claims more and more lives every day and seems unlikely to disappear unless coordinated efforts to distribute the vaccine are successful. Perhaps by the time that this book is published, may be the vaccine will have been successful in controlling the spread of the disease. But for now, there are not many options other than staying hopeful and trying to see through the light in the fog. Certainly, the current conditions of the pandemic have transformed our daily lives drastically, to such a degree that the true impacts will only completely unfold in the future. The regulations to control the infection rate in different countries globally have had an undeniable authoritarian impact on our lives even though they are justified by public safety. However, there is another dimension to this condition of the pandemic that is manifested in the unjustified attempts of some governments to silence the public speech of whistleblowers such as healthcare workers and journalists. One of the most acute examples of this silencing trend has unfolded at China’s censorship of the whistleblower doctor Li Wenliang, who himself later died from covid-19, with the accusation of spreading false rumors in December 2019.1 Moreover, some countries have begun to benefit from the extra-ordinary situation of the pandemic to impose immense and arbitrary power over their citizens. One of the most notorious of such cases has been initiated by the Hungarian Parliament in late March of 2020: Victor Orban, the Prime Minister of Hungary, was granted the power of rule by decree for an indefinite period, which were revoked by the Hungarian Parliament in June 2020.2 The bill introduced jail terms of up to five years for people who intentionally spread false information on the covid-19 situation in the country. It is almost counterintuitive to expect that some national and global measures would not be taken in line with saving human lives in the conditions of the pandemic. The problem is where to draw the line between public safety and the rights of individuals; i.e. which rights can be restricted, for how long and under what conditions. In other words, we may consent to the restriction of our right of movement or our children’s right to public education provided that there is a justifiable public concern, as we have done in the case of covid-19. But should we accept all types of restrictions on free speech in relation to public safety and if not, what would be our criterion for the justifiable restriction of free speech? These questions are not easy to answer but they are worth reflecting on due to their significance in the face of the pandemic.

1

https://www.theguardian.com/world/2020/mar/20/chinese-inquiry-exonerates-coronaviruswhistleblower-doctor-li-wenliang (Accessed on 12 May 2020). 2 https://www.theguardian.com/world/2020/mar/30/hungary-jail-for-coronavirus-misinformationviktor-orban (Accessed on 13 May 2020).

8.1 In What Ways Can the Latest Pandemic Inform Our Conception of Free Speech?

8.1

159

In What Ways Can the Latest Pandemic Inform Our Conception of Free Speech?

There are lots of questions that we must address in the context of the current pandemic not only on the issue of free speech but also on other topics of political theory and I believe it is still too early to be able to answer most of them properly. For instance, how will the pandemic impact our way of doing political theory? How will it impact our thinking about certain normative concepts of political theory such as justice, freedom, equality and rights? In what ways can the latest global experience of the pandemic inform our conception of free speech? In this last part of the book, I intend to answer this last question by relying partly on my observations and partly on my theoretical intuition. Let me begin my analysis by restating the content of this book. In this book, I developed a theoretical framework, which I call the double-grounded principled approach, to justify free speech on principled and strong grounds and applied this framework to particular cases of academic freedom, media freedom and the debates on hate speech. I examined critically the major justifications of free speech; discovery of truth, personal development, equal autonomy and democratic participation; and demonstrated that a strong justification for free speech must rely on principled grounds that combine and revise the arguments of equal autonomy and democratic participation. Moreover, I explored the dimensions of how one may construct conceptions of academic freedom and media freedom by relying on the theoretical framework of the double-grounded principled approach to free speech. Lastly, I investigated how the proposed theoretical framework in the book considers the limits of free speech by specifically examining hate speech. Upon the above background, I believe that the latest experience of the pandemic has demonstrated that free speech is significant and this significance stems from free speech’s quality of being a requirement of the right to equal autonomy and the right of individuals to share the political power. In other words, the current experience of the pandemic in relation to free speech confirms that the arguments for equal autonomy and democratic participation, two pillars of the double-grounded principled approach, are compelling justifications to ground free speech. I endeavor to explain the reasons for this argument below. As mentioned before, the current pandemic imposed its reality in the form of silencing attempts and censorship of speech elsewhere in the world along with the other measures to control the infection rate of the virus. The Chinese government accepted that there were cases of novel coronavirus-related deaths particularly in the Wuhan region of the country only a couple of weeks after Doctor Li Wengliang was censored with the accusation of spreading false information. What would the Chinese government lose if it informed the world earlier and what did the consequences of silencing Dr. Wenliang cost humanity? We may not answer these questions with mathematical accuracy but we can infer a high possibility that warning the whole world a few weeks earlier would have made a considerable difference in preparing for the impacts of the virus.

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Of course, the information flow globally on covid-19 has contained fake and unscientific communication as well. It is almost inevitable to prevent this in a world of cyber-knowledge, especially in the conditions which locked down millions in their homes and made online meetings the norm. Actually, this has been a challenge before the pandemic as well. However, we have also witnessed in this period of the pandemic that some governments, if not many, have made use of their powers to silence criticisms of their policies under the emergency rules by appealing to the prevention of the spread of fake and false information regarding the situation of the virus in their countries. This appeal has been used especially in authoritarian countries where censorship and threat have been in use against journalists and with respect to social media communications as a strategy of control. For instance, as of 16 March 2020, 19 people were arrested with the charge of unfounded and provocative social media comments in Turkey during a time where the rate of infections was relatively low in the country.3 We have also witnessed that the information provided by governments and state authorities was questioned by the public, not only in totalitarian countries but also in democratic ones. In the United Kingdom, it has been the case that the people from a BAME (Black Asian Minority Ethnic) background have died more than the white population. Public Health England’s review states: “An analysis of survival among confirmed COVID-19 cases shows that, after accounting for the effect of sex, age, deprivation and region, people of Bangladeshi ethnicity had around twice the risk of death when compared to people of White British ethnicity. People of Chinese, Indian, Pakistani, Other Asian, Caribbean and Other Black ethnicity had between 10 and 50% higher risk of death when compared to White British.”4 The government has been criticized by the public for not addressing the causes of the high number of deaths in BAME populations and not responding effectively with recommendations to help protect people.5 The labor MPs have pointed out that this outcome is a manifestation of the structural racism and inequalities which have been perpetuated in British society for a long time, and the government is silent on these real causes of the deaths. But why is the free flow of information is important at all in this context? Why do we not simply want to rely on the best judgment of leaders and policymakers on tackling the pandemic? Is it because we can only reach true knowledge in a marketplace of ideas? Is it because we cannot trust governments due to their potential inclination to manipulate? Possibly, there is some truth in both of these opinions, yet I believe the main reason to have a free flow of information and opinions is because we are equally autonomous individuals and this requires us to

3

https://foreignpolicy.com/2020/04/01/coronavirus-censorship-pandemic-disinformation-fakenews-speech-freedom/ (Accessed on 13 May 2020). 4 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/890258/disparities_review.pdf, Disparities in the risks and outcomes of Covid 19, p. 39. 5 https://www.theguardian.com/politics/2020/jun/05/lack-of-response-to-bame-covid-19-toll-risksfuelling-tensions-say-mps (Accessed on 7 June 2020).

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freely hear, read and listen to all possible information and opinions on the subject of the covid-19. Only under the conditions of free speech, can we develop our own authentic opinions on the subject without an external imposition by the authorities. Free speech would not be a problem at all if everybody in the world would consent to the best judgment of their governments and believe that they were doing their best for the welfare of their own people. However, this is not the case and it is not possible at all thanks to the capacity of equal autonomy each of us has which enables us to make our own judgments. The free flow of information is significant for a second reason; the right of individuals to share the political power. Why do governments tend to censor or silence the whistleblowers? I think it is almost obvious that no government wants to be criticized for its policies or to appear to lack full control or power over the population at anytime. This has manifested in the cases of the silencing of the healthcare workers who wanted to speak the truth to the public regarding the measures taken to tackle the pandemic. For instance, in the UK, healthcare workers were mostly encouraged by hospital authorities to stay quiet about their working conditions during the pandemic, e.g. about the issues regarding the lack of protective work equipment.6 Due to the conditions of the pandemic, we have experienced unprecedented changes to our daily lives, including the suspension of some of our basic rights, such as the right to movement. It would be otherwise unimaginable, if not for the pandemic, that democratic governments would rely on quite totalitarian measures such as lockdowns and other restrictions on daily life. Nevertheless, the condition of the pandemic does not cancel citizens’ right to question and criticize the state’s policies on the covid-19 and other problems. As the democratic participation argument for free speech reminds us, only by way of free speech, can we contribute to public deliberation and reasoning. I think we have witnessed one of the acute manifestations of the significance of free speech and democratic participation during the protests against racism that were sparked with the killing of George Floyd by a white police officer in Minneapolis, Minnesota on 25 May 2020. After arresting Floyd, a police officer continuously kneeled on his neck after he told him that he couldn’t breathe. Thousands of people in the US and different parts of the world, regardless of the curfews and lockdowns, went on the streets and protested against structural racism by saying “black lives matter”. These events once again have proved that democracy requires free speech and the democratic right to deliberate; people’s right to peaceful protest cannot be taken from them if we wish to build more just societies where all persons are treated with equal respect and provided with equal opportunities. George Floyd’s murder was brutal evidence that humanity is far behind this ideal even after 60 years have passed after the Civil Rights Movement.

6

https://www.theguardian.com/society/2020/apr/09/nhs-staff-forbidden-speaking-out-publiclyabout-coronavirus (Accessed on 14 May 2020).

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Hate Speech in the Time of the Pandemic and the Limits of Free Speech

Chapter 7 of this book is devoted to hate speech. I have analyzed it from both the conceptual and substantive point of view as a limit to free speech and have argued that from the perspective of the double-grounded principled approach, hate speech cannot be viewed as a type of protected political speech. This is because, as I have claimed, it does not aim to contribute to democratic public deliberation since it is motivated to exclude certain people from the public forum as a result of their group identity and moreover, it is far from aiming to develop reasons that are acceptable by others. Unfortunately, we have witnessed a significant rise in hate speech during this latest pandemic, especially in online social media. Hate speech, in combination with fake information and conspiracy theories, has gained an anti-Chinese and antiSemitic form. For instance, according to a report in the New Statesmen, a technology company recorded a 300% increase in hashtags ‘that supports or encourage the usage of violence against China and Chinese people’ in a single week in March.7 According to the same report, the hashtags served as an umbrella for the expression of various conspiracy theories and speculations on the origin of the virus such as the accidental release of a bio-weapon from a laboratory, the deliberate preparation of the virus by China, and China blackmailing the world to buy its 5G in exchange of medical supplies. Moreover, the report adds that there has been a significant rise in anti-Semitic hashtags too, which speculate on racist beliefs such as Jewish- led world governments and the virus being used to kill a certain portion of the population. It has been evident that hate speech has been generated through fake information and conspiracy theories. It is difficult to control the flow of fake information even though some companies such as Twitter and Instagram have developed some measures to tackle the issue. On the other hand, there is a risk that the need to identify and take down fake information could be manipulated against the free flow of speech that is meaningful, necessary and tolerable. Where to draw the line? In other words, what type of speech should we tolerate so as not to jeopardize our free speech rights? I believe the specific features of hate speech might help us here to distinguish it from any type of fake information. In Chap. 7 of this book, I referred to four main features of hate speech by reconstructing the definitions developed by Parekh and Brison. First, hate speech targets an individual or a group of individuals on the basis of certain characteristics such as race, ethnicity, sexual orientation and any other characteristic that could be the target of hate (Brison 1998, 313). Secondly, hate speech ascribes the target a set of constitutive qualities that are considered highly undesirable (Parekh 2006, 214). Since these qualities are presented as almost 7

https://www.newstatesman.com/science-tech/social-media/2020/04/covid-19-coronavirus-antichinese-antisemitic-hate-speech-5g-conspiracy-theory (Accessed on 18 May 2020). The double quote belongs to the original text.

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unchangeable and inherent, the bearers of these qualities are demonized and humiliated. As a direct result of the demonization, the target groups are placed on the outside of normal social relations (Parekh 2006, 214). They are pictured as unreliable, irresponsible and unreasonable so that it is not possible to share the common rules of society with them. Finally, as Susan Brison mentions, hate speech includes vilification in the form of either face-to-face libel, or the creation of a hostile environment, as well as the commission of group libel (Brison 1998, 313). Given the above features of hate speech, it can be claimed that speech that lacks a valid scientific basis which aims deliberately to manipulate individuals and, at the same time, that calls for violence against a group of people cannot be tolerated. It is obvious that such speech does not aim to contribute to public deliberation due to its identification of a group of people, mostly the Chinese in the case of the pandemic, to exclude them from social and public life and declare war against them. Hate speech is not any kind of fake news or information and I believe we should be less tolerant of it than any other type of fake information. In other words, as I argued in Chap. 4, deliberately manipulative fake information, which is different from speech as a result of mere ignorance or simple prejudice, are not free speech that deserves the same protection as public political speech and certainly, it can justifiably be regulated. However, there is something more to hate speech, that makes its regulation even more necessary, that involves hate and violence. This means we have less reason to be tolerant of hate speech than any type of fake information.

References Brison, Susan. January 1998. The Autonomy Defense of Free Speech. Ethics 108: 312–339. Jacon Mchnagama and Sarah Mclaughlin. Coronavirus Has Started a Censorship Pandemic, Foreign Policy. https://foreignpolicy.com/2020/04/01/coronavirus-censorship-pandemic-disin formation-fake-news-speech-freedom/. Accessed on 13 May 2020. Manavis, Sarah. Covid 19 Has Caused a Major Spike in Anti-Chinese and Anti-Semitic Hate Speech. https://www.newstatesman.com/science-tech/social-media/2020/04/covid-19-coronavi rus-anti-chinese-antisemitic-hate-speech-5g-conspiracy-theory. Accessed on 18 May 2020. Parekh, Bhikhu. December 2005–February 2006. Hate Speech- Is There a Case for Banning?. Public Policy Research 12: 213–223. Public Health England, “Disparities in the Risks and Outcomes of Covid 19”. https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/890258/ disparities_review.pdf, 2020. The Guardian. https://www.theguardian.com/world/2020/mar/20/chinese-inquiry-exonerates-coro navirus-whistleblower-doctor-li-wenliang. Accessed on 12 May 2020. The Guardian. https://www.theguardian.com/world/2020/mar/30/hungary-jail-for-coronavirusmisinformation-viktor-orban. Accessed on 13 May 2020. The Guardian. https://www.theguardian.com/politics/2020/jun/05/lack-of-response-to-bamecovid-19-toll-risks-fuelling-tensions-say-mps. Accessed on 7 June 2020. The Guardian. https://www.theguardian.com/society/2020/apr/09/nhs-staff-forbidden-speakingout-publicly-about-coronavirus. Accessed on 14 May 2020.