The Utilitarian Argument from Risk Against Mill’s Defense of Freedom of Speech

Utilitarianism is an ethical doctrine that prioritizes the maximization of utility in human action. Mill thinks of utility in terms of happiness. Mill defines utilitarianism in these terms: “actions are right in proportion as they tend to promote happiness, wrong as they tend to produce the reverse of happiness. By happiness is intended pleasure and the absence of pain; by unhappiness pain and the privation of pleasure.” (Mill, 1861/1879, p. 60). While Mill recognizes that happiness cannot be quantified and that there are different qualities of happiness he insists that it can be measured to the extent that it is possible to compare and select acts relative to their utility. This makes it possible to act in order to maximize the most and the highest happiness for the greatest number of people involved – Mill’s moral ideal. Utilitarianism is a kind of consequentialism; it claims that action can only be morally evaluated relative to its consequences. That is, no acts are right or wrong in themselves but only in terms of the extent to which they produce utility. Insofar as all sentient beings have the ability to experience utility the utilitarian attempts to take all of their perspectives equally into account. For Mill’s defense of free speech, any form of public expression, (declaring one’s opinion, singing, insults) qualifies as speech. Mill regards speech as free if there are no laws against any public expression. Mill’s utilitarian stance means his defense of free speech must establish that utility or, basically, human happiness, is greater in an environment of free speech than regulation. Mill’s arguments for free speech are concentrated in chapter 2 and the first paragraph of chapter 3 of his On Liberty. This topic has already received an enormous amount of scholarly attention much of it critical. Jonathan Wolff (2006) argues that Mill’s commitment to individual rights ultimately rests upon his Victorian faith in the moral progress of western civilization and that challenging this faith has communitarian implications for utilitarianism. Robert Paul Wolff (1968) insists that utilitarianism cannot recognise the division between the public and private realms that could forbid an invasion of personal liberty. Perhaps the most uncompromising attack on the utilitarian credentials of Mill’s project in On Liberty is produced by Gertrude Himmelfarb (1974) who argues that therein Mill effectively abandoned utilitarianism altogether. Isaiah Berlin (1991) is the most influential modern proponent of the view that Mill’s failure to rid himself of the strictures of the crude and overbearing implications of utilitarianism hamstrung his arguments to the extent that, despite points of great complexity and depth of insight, they ultimately descended into incoherence. This is still the prevailing interpretation of Mill and so well established that John Gray and G. W. Smith (1991) call it the traditional interpretation, which Gray, Alan Ryan and John Rees attempt to challenge in different ways. This article is a novel argument for the traditional interpretation based upon problems of fallibility and risk.

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