T.M. Scanlon Interview: Conversations with History: Institute of International Studies, UC Berkeley

Freedom of Expression, Tolerance, and Human Rights: Conversation with T. M. Scanlon, Alford Professor of Natural Religion, Moral Philosophy, and Civil Polity; Harvard University; February 20, 2007, by Harry Kreisler

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Free Speech, Privacy, and Intervention

In the wake of 9/11 we developed a new scenario of the possible threats to the United States, which, one could argue, provide an opening for the state to make a new case of what its domain should be with regard to freedom of speech. One thinks of the notion of a surprise attack, the notion that you're dealing now with terrorist groups that might have access to nuclear weapons. In light of these changes, what intuitions do you have about how you might change your thinking on matters of free expression, if at all?

These seem like new questions but in a sense they're old questions. What changes things is not so much 9/11 but new technology. One of the most important things we'd want to protect, in protecting freedom of expression, is opportunities for advocacy, and opportunities for people to find out whether others agree with them about the propriety of particular actions. It doesn't seem to me that the state is threatened, that al Qaeda presents a worry in that dimension, although Muslim imams may make inflammatory statements. It seems to me that that's something you've got to live with. I think that's an old question, I think it's a settled question. I don't think 9/11 changes it, although it gets us more excited about it, just the way at the time of the First World War people were excited about anarchists making speeches. I think there's a general tendency of the government to exaggerate the degree to which they need to protect us by restricting simple statements of advocacy.

On the other hand, there's another question, which is communications between conspirators. Maybe they do need to be able to restrict the way people can communicate with each other, if they're actually in the process of carrying out a plan. I think that's not an issue of freedom of speech; it may become an issue of privacy, and it seems to me, a separate area, but you need to have some kind of prior cause. You can't just start listening to everybody's communication with everybody because you're going to fish around and see if you can find somebody who's in the process of developing a conspiracy. Where there's probable cause to think these people might be engaged in a conspiracy, it's not an issue of freedom of speech that they might be able to do it, nor, I think, is it an issue of privacy.

The main question of where freedom of speech comes in is this area of public advocacy, and I think that the risks that public advocacy might turn more people on to being against the government is a risk that we simply have to accept.

How bound are these discussions by the kind of polity that you're talking about and how you think about those matters? Your essay on human rights is making an effort to think about what the circumstances are under which one should intervene, and whether it's universal or not.

Your question raises two difficult issues. One is relativism and the other is the permissibility of intervention. It's important to keep these two things separate.

First, I believe in an open society. I think that defensible institutions have to be ones that the citizens to whom they apply, and who are asked to accept and obey them, can object to them, raise questions and protest against them. That seems to me a basic requirement of legitimacy of institutions, and I'm inclined to say that's universal. That isn't just a parochial view about institutions, it's a view about what people can demand of institutions as a condition for being willing to accept them and go along with them. They have to be able to protest, so I'm not a relativist about that. In the exact form that protest needs to take, or the exact form the political institutions take, there's a certain range for variation, but I think there's a fairly strong universal truth.

Now, we hear there's some other society where people aren't allowed to protest. That properly changes our view of the authority that government has to speak for the people, but it doesn't immediately follow that we can tell them they've got to do something different. We can say, "We don't think that. Your citizens, it seems to us, have a good case." But can we cut off their oil? Can we stop trading with them? Can we send in the Marines? Those are all much more difficult questions. One wants to separate the question of whether these standards apply from the question of what role outsiders have in intervening to try to change people in one direction rather than another.

In addressing that question, also, it's important to remember that they don't all have the same view about these things. Relativism is often put as "we versus they." Of course, we think that human life is special or sacred; we think that people have these rights. In this other society they don't think [that]; but they are almost never unanimous about this. The portion of they who have been put in jail for their political beliefs don't normally think it's okay to put people in jail for their political beliefs! In deciding what's right and wrong about what's happening in their country, you've got to take into account the claims of the people who are in jail, as well as the people who are outside it.

That said, there's a further question about what we are able or entitled to do about it. Sometimes we are able to do something, maybe by expressing disapproval, maybe by withdrawing trade, but those are difficult questions, although those questions also are asked within a universal moral framework about what's permissible to do to somebody else. When are you permitted, or even required, to intervene to protect somebody against horrible treatment, and when are you required as an outsider to stay out? That's a general moral question that applies across boundaries.

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