Rawlsian Minutiae, Mill, and Free Speech

First of all, it is important to recognize that the basic liberties must be assessed as a whole, as one system. That is, the worth of one liberty normally depends upon the specification of the other liberties, and this must be taken into account in framing a constitution and in legislation generally. While it is by and large true that a greater liberty is preferable, this holds primarily for the system of liberty as a whole, and not for each particular liberty. Clearly when the liberties are left unrestricted they collide with one another. To illustrate by an obvious example, certain rules of order are necessary for intelligent and profitable discussion. Without the acceptance of reasonable procedures of inquiry and debate, freedom of speech loses its value. It is essential in this case to distinguish between rules of order and rules restricting the content of speech. While rules of order limit our freedom, since we cannot speak whenever we please, they are required to gain the benefits of this liberty. Thus the delegates to a constitutional convention, or the members of the legislature, must decide how the various liberties are to be specified so as to yield the best total system of equal liberty. They have to balance one liberty against another. --John Rawls A Theory of Justice, p. 203. {Emphasis added--ES}

At one point, in his marvelous (1989) Hayek and Modern Liberalism, Chandran Kukathas quotes from Rawls' A Theory of Justice in order to illuminate the point that "conflicts among different pursuers of values are best regulated according to principles which respect (the right to) liberty." (p. 147) Kukathas quotes the part I have highlighted and italicized. I want to call this part Rawls' "ordered conception of free speech" stance. (One might also call it 'the rule governed conception of free speech' or the 'transcendental conception of free speech' etc.) And its that highlighted and italicized material that triggered this post.

While Rawls goes on to discuss Mill's On Liberty in the next sections (on freedom of conscience), he does not comment on the fact that the ordered conception of free speech is at variance with the more tumultuous conception of free speech that is usually ascribed to On Liberty. I put it like that because I don't want to perpetuate the error that Mill holds 'a free market in ideas that will lead to truth view' although the marketplace of ideas view is even more frequently (and, as Jill Gordon persuasively argues, mistakenly) attributed to Mill (recall this post); recall also see, for example, here; here,  and here.) 

One reason to call it Rawls' account an 'ordered conception' of speech is that the value he ascribes to it is articulated in functional terms. One might say that for Rawls the intelligibility of freedom of speech presupposes that it has a certain function namely to produce 'intelligent and profitable' speech (which he may have inherited from Knight--see the second picture). Leaving aside the elitist commitments on display here (and, if one wishes, the generosity toward profit if we read him over-literally), lots of emotionally significant expressive speech clearly is not like that even if it falls short of the vituperative speech that Mill worries about.  In fact, this contrast between expression and discussion is explicit  on p. 346 in Frank Knight's treatment of some such contrast, and is one of the heavily annotated passages in Rawls' copy of The Ethics of Competition.*

The following is from p. 352 in Knight:

Now, before I continue, I do not want to claim that Rawls thinks governments have very broad scope to regulate speech to make it 'intelligent and profitable' or to promote the ordered conception. He may well also believe that this would be imprudent or, that the enforcement of speech restrictions, would generate concerns about violations of other liberties (privacy, assembly, freedom of conscience, etc.). And he may also think that when the government regulates speech it really is interested in content and not order (and so cannot be trusted to get this right). In fact, in A Theory of Justice Rawls is by and large not that interested in freedom of speech. But one can see why the functional significance of the ordered conception lends itself well to the rather extensive speech restrictions (in selling financial instruments, in selling pharmaceuticals, in selling tobacco, etc. ) which are quite common in the contemporary administrative state (and often ignored in recent public debates over woke and freedom of speech).

As an aside, I don't mean to satirize the ordered conception of speech. It clearly has debts to Knight's and Buchanan's diverging conceptualizations of liberalism as involving "democracy as government by discussion" that was, as I have suggested above, have been familiar to Rawls. (I also think one can extract the ordered conception from Mill's writings on representation.) I am myself not immune to the pull of the ordered conception of speech in some contexts. For example, it informs my own views on academic freedom which fundamentally involves ordered speech of different kinds (in journals, the seminar room, etc.) I also tend to suspect (echoing Iris Marion Young) that advocates of deliberative democracy and (closer to Rawls' own heart) public reason tend to be (dangerously) enthralled by the ordered conception of speech.

Be that as it may, if one works with the revised (1990) edition of A Theory of Justice, the ordered conception is less pronounced. In fact, the passage is re-written in non trivial ways. Among the most significant changes, the revised version of the passage removes 'intelligent and profitable" and the distinction between rules of order and rules on content altogether:

First of all, one must keep in mind that the basic liberties are to be assessed as a whole, as one system. The worth of one such liberty normally depends upon the specification of the other liberties. Second, I assume that under reasonably favorable conditions there is always a way of defining these liberties so that the most central applications of each can be simultaneously secured and the most fundamental interests protected. Or at least that this is possible provided the two principles and their associated priorities are consistently adhered to. Finally, given such a specification of the basic liberties, it is assumed to be clear for the most part whether an institution or law actually restricts a basic liberty or merely regulates it. For example, certain rules of order are necessary for regulating discussion; without the acceptance of reasonable procedures of inquiry and debate, freedom of speech loses its value. On the other hand, a prohibition against holding or arguing for certain religious, moral, or political views is a restriction of liberty and must be judged accordingly. Thus as delegates in a constitutional convention, or as members of a legislature, the parties must decide how the various liberties are to be specified so as to give the best total system of liberty. They must note the distinction between regulation and restriction, but at many points they will have to balance one basic liberty against another; for example, freedom of speech against the right to a fair trial. The best arrangement of the several liberties depends upon the totality of limitations to which they are subject.--John Rawls A Theory of Justice, Revised edition, p. 178. {emphasis added--ES}

I suspect part of the change of wording is due to that it is easy to abuse a purported restriction on order as a restriction on content. For, while officially dropping the distinction, the revised version leans into denying the government any significant content restrictions, by adding the point that "a prohibition against holding or arguing for certain religious, moral, or political views is a restriction of liberty." But as the highlighted part suggests, even so, the crucial element of the ordered conception of speech does remain in the revised version.

Let me close with a sociological observation. Despite the fact that advocates of public reason and deliberative democracy, which lean heavily on conceptions of ordered speech, have thriving research programs (and the former is very indebted to Rawls), it is safe to say that Rawls' conception of freedom of speech has not been as influential as other parts of his project. I have three kinds of evidence for this claim: first, in Katrina Forrester's In the Shadow of Justice, freedom of speech barely figures. (Of course, civil disobedience does!) Second, the emphasized and italicized parts of the passages are quoted very rarely in the secondary literature (although I found it in a few dissertations especially). Third, it is my perception that in scholarly and more public intellectual discussions of free speech, Rawls' shadow has not, displaced Mill. Obviously my perception counts for nothing, but I would be amazed if data crunchers could show otherwise.

*PS After reading an earlier draft of the post, David M. Levy was kind enough to share some marking up of Rawls' personal copy of Knight's The Ethics of Competition (which has Knight's earliest use of 'government by discussion' as I learned from the paper by Ross Emmett linked above). The fact that Knight treats the rules of discussion as game is important evidence for Forrester's argument on the early Rawls' interest in what is now known as neoliberalism. For some other salient to the present post's passages see these pix:

 

From p. 343: