The modern state is theoretially based on the notion of free association of individuals. I say this as an observation rather than as a value-judgment. In principle, the state is embodied in a government of representatives elected by individuals, and not by groups. Society functions as a generally free market of individual buyers and sellers, including those who buy and sell productive labour. Labour and goods circulate freely with only such hindrances as are deemed necessary to protect the health, safety, and property of individuals. The relationship of the individual to society is conceptualized in terms of individual rights and freedoms. This is the context for the theory and practice of freedom of expression, and hence for the repudiation of censorship. Literature, art, religion, political ideas, moral principles, everything spiritual and intellectual is a commodity in a free market, just like goods, services, and labour. They circulate freely, they are not censored.
This modern state that we all recognize developed in Europe and North America with the rise of mercantile and industrial capitalism, between the 15th and 19th centuries. It enshrines the individualism and free market ideals characteristic of capitalism. Outside Europe and North America, and in Europe until the Renaissance, society was an association of groups and not of individuals, of castes in India, for example, or of nobility, peasants, and burghers in medieval Europe. Even today in some countries the national state structure is very weak, and their populations organized into ethnic groups and clans.
A close examination of modernized societies shows that in fact the rights and freedoms proclaimed as the defining feature of the contemporary "liberal" state are largely illusory. Real freedom, the freedom to determine what is produced where, when, and by whom, the freedom to determine who holds real political power, the freedom to control education, entertainment and other aspects of culture, these freedoms belong in their fullness to only a small proportion of individuals in society. As the American writer Abbott Joseph Liebling observed, "Freedom of the press is guaranteed only to those who own one!"
In reality, the concept of individual rights associated with the free circulation of labour, products and ideas dissolves in contradiction. One person's right to accumulate wealth conflicts with another's right to the necessities of life. One individual's right to publish scenes of sex with children destroys another's right to a happy childhood.
To better grasp the tension between individual freedom and social cohesion, it is helpful to examine the basis of the theory of freedom of expression as it was formulated by 17th and 18th century liberal philosophers, such as John Locke in England, and Pierre Bayle, Montesquieu, Voltaire and Rousseau in France. The principle of freedom of expression is rooted in their idea of the social contract, initially formulated in the 17th century by Thomas Hobbes. According to this concept the basis of society is the voluntary surrender of individuals' natural freedom to the collectivity, or, more precisely, to the sovereign or the state, who in turn protects the individual and grants her or him the freedom necessary to live and flourish in society. This freedom includes specifically the freedom of conscience and its corollary the freedom of expression. For example, late 17th-century French philosopher Pierre Bayle declares that in ceding their liberty to the state, the individuals who form society in no way grant the state any rights over their conscience. Similarly, for Voltaire -- who is most famous for a statement he never actually uttered, namely "I disagree with what you say but will defend to death your right to say it" -- freedom of conscience is a natural right that cannot be circumscribed by the power of the state.
However, and this is an important point, in classical social contract theory freedom of expression derives not from the independence of the individual in relation to the sovereignty of the state, but rather precisely on the individual's recognition of this sovereignty. This is because it is the state's responsibility to protect all citizens, irrespective of their opinions, and, among other things, to protect them from fellow citizens who would attempt to force their conscience.
Let me summarize: each individual enters into a contract with all other individuals. He or she gives up their natural freedom to do whatever whenever they want, and in exchange receives the protection of society, embodied in the sovereign state, including the protection of their conscience to hold whatever opinions they do, and by extension to share those opinions with others.
We can see that the liberal philosophers who developed the notion of the freedom of expression themselves impose a limit to that freedom, namely when it is a question of promoting hatred and intolerance. I argued earlier that the modern liberal state has failed to assure the freedoms promised by the liberal theorists of early capitalism. Nevertheless, I believe that the concept of the social contract, particularly in Rousseau's interpretation, is essentially sound, and that the reasons advanced by classical liberal philosophy for maintaining limits to the freedom of expression are as valid today as they were in the eighteenth century. After the failure of the Weimar republic, after the Holocaust against the Jews in Europe, and after the genocide in Rwanda, they are perhaps even more valid.
Although the problematic of the freedom of conscience in the 17th and 18th centuries concerned mainly religious doctrine and practice, today there are other areas which are as or more important, for instance political ideology and cultural tolerance. Moreover, the question of intolerance can be raised with respect to groups distinguished other than by their religion or ethnic origin; it can be raised with respect to women for instance. And at the same time hate propaganda can be diffused in genres other than the tract or the essay: it can be transmitted through a novel, a film, a photograph or a painting. I have not read Brett Easton Ellis's infamous novel American Psycho (1991), but from what I have read about it I am prepared to consider it a form of hate propaganda against women. Internet photographs depicting scenes of sexual assault or exploitation perpetrated against children fall for me into the same category.
Let me conclude by replying to a common objection raised against setting any limits on the freedom of expression, the argument that adults should not have to entrust to anyone else the responsibility to choose for them what they will read, see, and hear. My reply to this is in terms of the social contract: in order to live in society we already yield to the state our freedom to make decisions for us on a wide-range of matters affecting our daily lives: the speed at which we drive our cars, the ingredients that may be introduced into our food, the subjects that are offered our children in school, and so on. Providing that the fundamental principle of freedom of conscience is clearly enunciated, and that the rights of minorities are enshrined in law, it is not impossible to conceive of competent judges, appointed by the state, who are capable of making fair rulings on what is the propagation of hatred.
Other essays by James MacLean
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