A RIGHT TO INDEPENDENCE: A KANTIAN ACCOUNT OF FREE EXPRESSION AND ITS LIMITS

Date of Award

8-23-2024

Degree Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

Department

Philosophy

Advisor(s)

Kenneth Baynes

Keywords

free expression;Kant;Rights;Speech

Subject Categories

Arts and Humanities | Philosophy

Abstract

My dissertation is primarily devoted to answering one question: why should we have a right to free expression? My suspicion is that many disagreements over hot-button free speech issues—misinformation, hate speech, campus protests, campaign finance, social media censorship and more—ultimately turn on confusion regarding this question. To understand what kinds of speech are protected by the right to free expression, we must understand the purposes and justification of that right. Once we know this, we can evaluate whether or not various forms of speech advance those purposes and therefore deserve protection I offer a novel justification of the right to free expression based in a new interpretation of Kant’s political philosophy. To make my case, I undertake four tasks: 1) to show why we need a better account of the right to free expression, 2) to motivate this Kantian account of legitimacy, 3) to explain how it justifies the right to free expression, and 4) to explore the practical implications of this account on applied free speech issues. The first part of my dissertation argues against three popular justifications of the right to free expression: the interest-based account, the political account, and the public reason account. The interest-based account suggests that it is the key interests served by protecting expression that justify a right to free speech. I argue that this theory faces a dilemma: non-consequentialist interpretations abandon the sense in which your rights are for you and lack a principled way of weighing conflicting considerations, while consequentialist interpretations introduce unacceptable tradeoffs that undermine their ability to justify true rights. Political accounts, on the other hand, ground the right to free expression in the requirements of democratic political systems, arguing that free expression either makes for better democratic decisions or is a constitutive feature of democracy. I argue that such theories are at worst politically naïve and at best incomplete. Some versions rely on dubious empirical assumptions about political deliberation and democracy. Others, specifically those that propose an egalitarian justification of democracy, offer a partial but incomplete justification of both democracy and the right to free expression. All fail to justify protections for non-political expression. Finally, the public reason account grounds the right to free expression in the requirement that laws be acceptable to all reasonable subjects. I argue that this requirement ultimately fails as a condition of legitimacy and as a justification of rights. I suggest that we need a fresh start and find one in Kant’s political philosophy. The foundation of Kant’s political theory is the innate right of humanity: individuals’ right to independence consistent with the like independence of other agents. Independence, on this account, is relational: one is independent when one is not subjected to the necessitating choices of others. Before explaining how the Kantian theory generates rights, however, I must explain why it is plausible. I offer an argument for innate right grounded in a distinctive understanding of respect and explain why innate right justifies the imposition of a coercive political authority. This argument is predicated on the premise that, pace philosophical anarchists, individuals do not enjoy true freedom in the state of nature. On the contrary, a public authority in the form of the state is the only body that can ensure subjects’ freedom. The mandate to create a scheme of mutual independence is therefore the justification of the state, but it also generates two constraints on state action: 1) a substantive constraint that prohibits interference with individuals’ independence except to protect the independence of others and 2) a procedural constraint requiring relations of political equality to ensure that no individual is dependent on the political decisions of others. These two constraints generate numerous rights, among them the right to free expression. The substantive constraint says that governments can only exercise coercion to prevent individuals from interfering with others’ independence. Expression, while at times annoying or offensive, generally does not interfere with individuals’ independence in the sense of making them dependent upon the will of another. Expression tends to leaves those it confronts capable of deciding how to act. There are of course exceptions to this rule—speech that conspires to commit murder does indeed violate others’ independence —and such forms of speech don’t merit free speech protections. The procedural constraint imposes additional safeguards on speech for the sake of maintaining political equality. Citizens must have equal opportunity to express their views on matter of public concern to ensure that no one is subjected to others in the decision- making procedures. It is for this reason that governments are sometimes permitted to institute time, place, and manner regulations but not viewpoint-based regulations, even though the former may restrict more speech. I argue that these constraints still allow for and sometimes demand restrictions on certain forms of controversial speech. I argue that they justify restrictions on certain forms of hate speech, campus protests, and campaign contributions for the sake of protecting other agents’ substantive independence and/or maintaining procedures of political equality. However, these restrictions must be circumscribed and regulators must also pay close attention to the risk of abuse in their application. In the final chapter, I offer a more detailed analysis of another applied free speech issue: social media censorship. I argue against the consensus view that censorship by social media companies (SMCs) is an acceptable form of speech restriction. I suggest that such acts of censorship threaten political equality and that common defenses of the practice grounded in supposed differences between SMCs and governments fail.

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