Speech, truth and liberty: Bentham to John Stuart Mill

Bentham’s Utilitarianism transforms earlier free speech doctrine in the service of the pursuit of truth and the control of government, preserving the distinction between statements of opinion and of fact and awarding the latter a lesser degree of protection. The work of James Mill and the early writings of John Stuart Mill retain this distinction, but their accounts are weighed down by the problems of a direct Utilitarian approach, in their consequentialist balancing of different values against each other, and in their dependence on a majoritarian epistemology and their commitment to a naive progressive optimism. Mill goes on in On Liberty to address and resolve these problems on the basis of a new justification for free speech as free deliberative thought. I argue that, contrary to most interpretations, his new justification leaves untouched the basic distinction between absolutely protected expressions of opinion and only functionally and contingently protected assertions of fact, leaving room for restrictions on factual statements, especially when untrue

From Harm to Robustness: A Principled Approach to Vice Regulation

John Stuart Mill’s harm principle maintains that adult behavior cannot justifiably be subject to social coercion unless the behavior involves harm or a significant risk of harm to non-consenting others. The absence of harms to others, however, is one of the distinguishing features of many manifestations of “vices” such as the consumption of alcohol, nicotine, recreational drugs, prostitution, pornography, and gambling. It is with respect to vice policy, then, that the harm principle tends to be most constraining, and some current vice controls, such as prohibitions on drug possession and prostitution, violate Mill’s precept. In the vice arena, we seem to be willing to accept social interference with what Mill termed “self-regarding” behavior. But does that willingness then imply that any social intervention into private affairs is justifiable, that the government has just as much right to outlaw Protestantism, or shag carpets, or spicy foods, as it does to outlaw drugs? In this paper I argue that advances in neuroscience and behavioral economics offer strong evidence that vices and other potentially addictive goods or activities frequently involve less-than-rational choices, and hence are exempt from the full force of the harm principle. As an alternative guide to vice policy, and following some guidance from Mill, I propose the “robustness principle”: public policy towards addictive or vicious activities engaged in by adults should be robust with respect to departures from full rationality. That is, policies should work pretty well if everyone is completely rational, and policies should work pretty well even if many people are occasionally (or frequently) irrational in their vice-related choices. The harm and robustness principles cohere in many ways, but the robustness principle offers more scope for policies that try to direct people “for their own good,” without opening the door to tyrannical inroads upon self-regarding behavior