A Moral Geography of Liberty: John Stuart Mill and American Free Speech Discourse
| Author | Paul A. Passavant |
| Published date | 01 September 1996 |
| Date | 01 September 1996 |
| DOI | http://doi.org/10.1177/096466399600500302 |
| Subject Matter | Articles |
301-
A MORAL GEOGRAPHY
OF
LIBERTY:
JOHN
STUART
MILL
AND AMERICAN FREE
SPEECH
DISCOURSE
PAUL
A.
PASSAVANT
University
of
Wisconsin,
Madison
HE
AMERICAN
CONSTITUTION
establishes
rights
on
the
auth-
ority
of
the
sovereign
of
the
national
community -
the
American
people
whose
will
the
constitution
represents.
The
Bill
of
Rights
pro-
tects
the
liberties
of
Americans.
Therefore,
the
practice
of
claiming
consti-
tutional
rights
in
the
American
context,
like
freedom
of
speech,
brings
into
this
process
assumptions,
counterassumptions
and
struggles
between
these
conflicting
assumptions,
over
the
substance
of
the
American
people.
These
struggles
will
help
constitute
the
regulatory
norms
of
this
imagined
com-
munity,
and
the
nature
of
its
boundaries.
If
the
background
assumption
of
an
American
rights
bearing
community
is
necessary
to
establish
the
possibility
for
protecting
American
constitutional
rights
in
an
international
context
in
the
first
place,
this
assumption
also
establishes
the
limits
of
these
rights
in
the
boundaries
that
distinguish
America
from
other
possible
peoples
and
places.
In
this
essay,
I
explore
the
American
constitutional
right
of
freedom
of
speech
and
press
by
way
of
the
conventional
construction
of
the
time
and
space
coordinates
associated
with
the
emergence
of
a
right
to
free
speech.
The
narrative that
locates
America
as
a
place
where
one
legitimately
claims
rights
to
free
speech
is
the
American
appropriation
of
what
I
am
calling
here
the
’Millian
paradigm’,
which
refers
to
Mill’s
work
on
free
speech.
When
302
Americans
attempt
to
assert
a
right
of
free
speech,
they
often
inhabit
this
dis-
course
for
their
claims
to
make
sense.
The
Millian
paradigm
offers
a
frame
of
inclusion
and
exclusion for
identi-
fying
a
people
for
whom
freedom
of
speech
is
appropriate
and
those
for
whom
it
is
not.
Mill’s
system
of
enabled
and
disenabled
identities
has
functioned
in
a
symbolic
politics
of
speech
to
produce
a
’West’
and
the
’Rest’.
This
moral
geography
(Shapiro, 1994)
is
significant
because
it
structures
the
claims
to
free
speech
rights
and
is,
in
turn,
constituted
by
the
process
of
invoking
a
right
to
free
speech.
MILL
AND
AMERICAN
FREE
SPEECH
PROTECTIONS
I
define
the
Millian
paradigm
as
a
predominant,
if
not
the
dominant,
discourse
of
freedom
of
speech
in
the
West
in
general,
and
the
United
States
in
particu-
lar.
This
discourse
defines
the
system
of
speech
to
be
a
marketplace
of
com-
peting
ideas.
Persons
enter
this
system
as
reasoning
subjects
who,
in
exercising
these
capacities,
distinguish
good
ideas
from
bad
and
make
progress
towards
truth.
The
familiar
statement
’the
best
response
to
bad
speech
is
more
speech’
is
given
its
meaning
by
being
situated
within
this
discourse.
It
tells
individual-
ists
that
this
clash
and
conflict
helps
to
develop
individual
capacities.
It
tells
absolutists
why
they
should
value
freedom
of
speech
as
a
right.
For
liberals
who
use
the
absolutist
position
as
a
pole
to
situate
their
understanding
of
speech
rights,
this
paradigm
becomes
a
principle
that
can
stand
above
the
fray
of
bias
or
politics
in
order
to
aid
in
the
adjudication
of
controversies.
In
other
words,
this
discourse
provides
a
vocabulary
that
allows
one
to
talk
about
issues
involving
freedom
of
speech,
allows
one
to
value
it
as
a
right
and
con-
strains
the
sorts
of
utterances
that
can
be
made
about
this
right.
It
creates
a
problematic.’
Mill’s
free
speech
scheme,
however,
is
double-edged.
The
Millian
paradigm
emphasizes
progress
towards
truth
as
the
main
purpose
of
free
speech
and
places
responsibility
on
the
reasoning
capacities
of
its
subjects.
On
these
grounds,
speech
that
is
unlikely
to
contribute
toward
truth
and
persons
unlikely
to
be
able
to
push
forward
this
progress
have
no
claim
on
speech
rights.
Chaplinsky
v
New
Hampshire
(1942)
trades
on
the
Millian
paradigm’s
exclusionary
aspects.
In
this
case,
Justice
Murphy
argues
that
certain
cat-
egories
of
speech
may
be
excluded
from
first
amendment
protection .
These
’utterances
are
no
essential
part
of
any
exposition
of
ideas,
and
are
of
such
slight
social
value
as
a
step
to
truth
that
any
benefit
that
may
be
derived
from
them
is
clearly
outweighed
by
the
social
interest
in
order
and
morality.’2
2
The
first
amendment’s
importance
has
increased
substantially
since
the
First
World
War -
especially
since
the
late
1930s
with
the
establishment
of the
preferred
position
doctrine.
This
legal
doctrine
defines
certain
provisions
of
the
Bill
of
Rights
to
be
more
fundamental
than
others
are.
During
the
middle
of
the
twentieth
century,
legal
intellectuals
defended
and
interpreted
this
doc-
trine.
According
to
these
interpretations,
America
was
represented
as
the ’land
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