In the previous post on Sakal Papers, we found that under certain theories of free speech, it would be permissible for the government to regulate the newspaper industry in order to prevent monopolies and create an economic environment that would permit the flourishing of smaller newspapers. In Sakal Papers, however, the government chose a particular form of intervention: direct curtailment of the scope and/or circulation of big newspapers. In other words, the government curtailed the rights of some entities in order to achieve a system in which, overall, the distribution of the right was more equitable and just; to put it yet another way, in order to give effect to the rights of some, the government curtailed the rights of others. Is such action justified? Our discussion so far on this point has been incomplete, and this post aims to complete it.
It will be useful at this stage to adopt a distinction drawn by Nagel: between agent-neutral values, and agent-relative values. Agent-netural values are those that attach themselves to particular states of affairs, and thus provide everyone with a reason to promote them. Agent-relative values, on the other hand, apply only to the individual agent, or actor. Take the case of murder. According to an agent-neutral account, murder is prohibited because a society in which fewer murders occur is a better society overall, whereas according to an agent-relative account, murder is prohibited because it violates the individual right to life. Consequently, in the first case, you would be justified – for example – in murdering someone to prevent two murders (all other things being equal) – while in the latter case, you would not be so justified.
(A similarity may be noticed here with the traditional debate between consequentialist and deontological theories of rights: a runaway trolley is careening down a mountain-track, en route to killing five people; you find yourself next to a diversion signal that will change its path to one in which only one person is killed – but it is you who must actively divert the train’s path. Are you justified in doing so? Consequentialist theories (aimed at selecting the consequential state of affairs that will be best) say that you are; deontological theories (holding that rights are trumps against goal-based justifications that would curtail them) say that you aren’t.
What then is the value that we place upon free speech? Do we value it for all the benefits of a community in which speech is free? Or as an inviolable right that the government cannot interfere with even to give effect to the enjoyment of the right on the part of others? (Notice that the two options aren’t exhaustive).
An important argument supporting the former point of view is made by Raz, who views free speech as a public good. Public goods – such as street lighting and clean air – are goods enjoyed in common by the members of society in a way that one – or many – persons’ use does not exclude anyone else from using the good. Raz argues that free speech is a public good because the scope and strength of the right to free speech accorded to an individual is partially determined by the interests of third parties. The reason why, in our society, we have such a strong right to free speech – despite its seemingly minor importance in most peoples’ everyday scheme of interests – is that it is in everybody’s interest (and deeply so) that the right to free speech exists in society (that, Raz argues in turn, is because it is the only way to make government responsive and accountable to its citizens).
This, therefore, is a classic argument in which the individual right to free speech is derived from the desirability of the overall state of affairs in which that right is provided protection; consequently, government’s efforts to bring about that state of affairs are unimpeachable.
It will be noticed that the path of this argument is similar to the intrinsic/instrumental distinction; the concepts remain different, however. What is clear is that agent-relative values operate where the nature of the right is instrumental; whereas the right being intrinsic is a necessary condition for the existence of agent-neutral values (a quick analysis will verify the point).
Over the last two posts, therefore, we can clearly see that the first question we must ask ourselves, on reading Sakal, is “why ought we to have the freedom of speech in the first place?” or, “what is it that we value about the freedom of speech?” The answer to that question – and since it is a philosophical question, it needs a philosophical answer – will then determine a series of succeeding questions and answers, that will ultimately inform us whether or not we agree with the court.