Last week I gave a recorded talk on Adam Smith as political thinker- in Ghent (in Dutch) that can be found here. I expect my blogging to be a bit sparse next week because I will be in Tokyo for these two events (here; here).
It is well known (recall also this post) that J.S. Mill & Harriet Taylor’s On Liberty acknowledges the significance of Humboldt’s Sphere and Duties of Government (now often translated as The Limits of State Action) from which it derives its epigraph. On Liberty also quotes and discusses Humboldt’s essay a number of times (not the least on the possibility of divorce), but not when it comes to the doctrines that we associate with freedom of speech.
In The Limits of State Action Humboldt discusses freedom of speech in a number of places, including when it pertains to freedom of religion. But today my interest is in a chapter on so-called ‘police laws.’ In Humboldt’s day ‘police’ has a somewhat different meaning as ‘internal regulation’ often pertaining to public order—this meaning is echoed in such phrases like ‘public policy’ and ‘police states.’
So, the question Humboldt is really tackling in the passage of interest is to what degree freedom of speech can be reconciled with demands of public order. That way of conceiving the issue should be familiar from Spinoza, Bayle, Rousseau, and (recall) even Rawls’ Theory of Justice.
The two-fold principle Humboldt relies on is “the State ought not to interfere with these simple human relations, except where there are grounds for fearing some violation of its own rights, or those of its citizens.” (p. 86) The state’s rights all are limited to and follow from “the sake of protecting security” (p. 86) of the citizens. (As an aside, I suspect this is what Schmitt has in mind when he writes about liberalism’s obsession with security.)
The second part of the principle, that the state may only act when the rights of its citizens are violated, is the key framing of Humboldt’s treatment of free speech. This position is echoed at the start of Chapter IV of On Liberty: “The acts of an individual may be hurtful to others, or wanting in due consideration for their welfare, without going the length of violating any of their constituted rights. The offender may then be justly punished by opinion though not by law.”
Here’s the relevant passage from Humboldt:
What’s interesting about Humboldt’s position is that he acknowledges that speech and arguments can harm (‘wound the conscience’) or be ‘harmful.’ (The nineteenth century translation has ‘hurtful.’ (Although the German (see here) has ‘beleidigen’ (insult) and ‘Uebel’ (bad) as key terms, and so is thinner than the English available to Mill.) But despite such harm, Humboldt councils against state action. Before you treat him like a contemporary free-speech warrior, note that he like Mill/Taylor (‘punished by opinion’) does recommend shunning (“others are free to cut off all intercourse with such a person,”) although he recognizes that there may be some individual and social benefits not to do so.
Unlike many scholars, I think Mill and Taylor’s version of the harm principle also includes what we might call psychological harms (and not just incitement to violence of some sort). Since we are sympathetically (or antipathetically) connected we may feel real hurt from all kinds of (what Mill and Taylor call) “vituperative” speech even directed at others. This is why Hobbes was (as Teresa Bejan noted back in the day) so keen (recall) to police microaggressions.
But while it’s true that in On Liberty “the only purpose for which [state] power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to other” this does not articulate a sufficient condition for state restrictions on speech.* In fact, the harm principle is in Mill itself inscribed, as it is in Humboldt, in a general pattern of anti-paternalism and a general awareness that state-action can generate costs and risks that outweigh any benefit in harm-prevention. In this respect, I follow Daniel Jacobson’s classic article, “Mill on Liberty, Speech, and the Free Society.”+
*The quoted sentence opens the door to non-trivial use of state power in non-civilized communities, alas. (This seems a feature and not a bug of Mill’s thinking.)
+ Jacobson briefly mentions Humboldt. De facto I have argued that if we put Mill’s argument in context of Humboldt’s this strengthen the plausibility of Jacobson’s interpretation.
*The quoted sentence opens the door to non-trivial use of state power in non-civilized communities, alas. (This seems a feature and not a bug of Mill’s thinking.)
Yes, the India Office seems to have shaped his thinking, though it's hard to disentangle cause and effect. I still need to follow up your recommended reading on this.