Maximizing Speech
(John Speaking)

 
 
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I'm worried about the way you understand the concept of a right to speak. You seem to be saying that the reason we establish a moral or a legal right to speak freely is to maximize something. But when you look at rights as maximizing devices, you are assimilating them into a utilitarian calculus without saying so.

Utilitarianism is about maximizing outcomes - welfare or happiness or preference satisfaction for example. But rights are usually hedges against maximizing strategies. They keep us from maximizing welfare by sacrificing or abusing some people. We establish rights to protect the individual from restrictions and allow him or her to act in accord with the way of life they choose. Some philosophers suggest that it is more useful to think of rights as side constraints on actions rather than devices for maximizing or minimizing something.

Once we start talking about promoting freedom of expression in order to maximize the total amount of speech (assuming we could measure such a thing) we open the door to a thousand compromises. I'm really surprised that you said this, Malik, because you have already objected to the way that utilitarian ethics can work against minorities. This view of free speech is exactly the same. It might well be true in some circumstances that we can maximize the total amount of speech by restricting African Americans. Who knows?

Reference: For a discussion of rights as "side constraints" see Robert Nozick's Anarchy, State, and Utopia, p. 28-35.
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