Intellectually Humble Free Speech Law

Scholars familiar with the philosophical arguments in favor of robust free speech protections commonly identify three kinds of arguments given in favor of such protections:

1. Free speech helps us discover truth,
2. Free speech is required for democratic self-governance,
3. Free speech is an important part of autonomy.

Contemporary social and political circumstances—including the persistent spread of viral misinformation via social media—have called these traditional arguments into question.

Can we really claim that free speech helps us discover truth when the data suggest that falsehoods travel, on average, much faster and farther than truthful corrections? Does free speech, on balance, help preserve democracy when the integrity of elections is being undermined by orchestrated viral disinformation campaigns?

Such questions prompted by social, political, and material reality ought to be taken seriously. Taking such questions seriously may require us to reconsider what kinds of arguments best ground free speech rights. This may, in turn, require us to reconsider what good free speech law and policy should look like.

It may also require us to expand the set of disciplines and sub-disciplines we turn to for help in answering questions about the nature and scope of free speech.

Given the significance that truth- and knowledge-discovery arguments have traditionally played in free speech jurisprudence, I think epistemology is a promising candidate for a philosophical sub-field we should turn to for help in answering questions about free speech norms and laws.

Here, I want to explore one way in which virtue epistemology might prove useful in dealing with various philosophical questions about free speech, namely, by thinking about the epistemic virtue of intellectual humility.

Recently, there has been growing philosophical interest in intellectual humility. So far, there has been no consensus about what intellectual humility is. But following Dennis Whitcomb, Heather Battaly, Daniel-Jason Baehr, and Daniel Howard-Snyder, I take it that a crucial component of intellectual humility is being properly attentive to and to owning one’s intellectual limitations.

And following Ian Church, I take it that intellectual humility can be understood as a mean between two vices: intellectual arrogance and intellectual diffidence. By intellectual arrogance, I mean, roughly, overconfidence in one’s intellectual abilities or epistemic position. By intellectual diffidence I mean, roughly, insufficient confidence in one’s intellectual abilities or epistemic position.

With that conception of intellectual humility in mind, here are two suggestions for how thinking about intellectual humility might help us develop a more just account of free speech’s protections and limits.

First, in perhaps the Western world’s most famous defense of free speech, chapter 2 of On Liberty, John Stuart Mill claims that “All silencing of discussion is an assumption of infallibility.” Taken at face value, this claim seems untrue. People can seek to silence or suppress discussion because they don’t care about the truth, for example. They also may seek to suppress discussion of a topic or view because they think the harms of such discussion likely outweigh the benefits, even if they recognize there is a chance they might be mistaken about this.

Even if we disagree with Mill here, we may be able to validate an underlying motivation for his claim by thinking about intellectual humility. When Mill claims that “All silencing of discussion is an assumption of infallibility,” we recognize that Mill is criticizing silencing of discussion by criticizing those who assume infallibility. But why is assuming infallibility something to be criticized? At least one plausible response is that to assume infallibility is intellectually arrogant. If that’s right, perhaps a charge of intellectual arrogance implicitly underlies Mill’s critique here.

Framing Mill this way, one could argue that Mill was right to critique intellectual arrogance but was wrong about the level of intellectual arrogance one necessarily adopts whenever one seeks to silence discussion. If that assessment is correct, we can then ask what the implications of this should be for freedom of speech.

Second, free speech law in the United States provides greater protection to certain types of speech over others. For example, political speech receives a greater degree of protection than commercial speech. The distinct treatment is particularly stark when it comes to falsehoods spoken in the political versus the commercial domain.

There is disagreement among scholars as to whether these different levels of protection for political speech versus commercial speech can be justified. A focus on intellectual humility in free speech jurisprudence may allow us to come up with novel justifications for this difference.

Here’s one potential argument: Proper intellectual humility includes recognizing limits in one’s ability to be impartial. Judges are less likely to have the personal disinterest and critical distance needed to impartially assess the truthfulness or value of political speech compared to many other kinds of speech judges must make judgments about. An intellectually humble free speech jurisprudence should be able to account for this by setting particularly high standards for regulations on political speech compared to other kinds of speech.

Such an argument requires more development and support before being endorsed, but my point here is simply that a focus on epistemic virtue in general, and intellectual humility in particular, may be a useful way to rethink the role of epistemic arguments in developing free speech law and policy that better serves the ends of justice, freedom, and equality.

Photo credit to Robinson Recalde via Unsplash.