The Collapse of Freedom of Expression

Jordi Pujol

Description

This book offers a holistic account of the problems posed by freedom of expression in our current times and offers corrective measures to allow for a more genuine exchange of ideas within the global society.

The topic of free speech is rarely addressed from a historical, philosophical, or theological perspective. In The Collapse of Freedom of Expression, Jordi Pujol explores both the modern concept of the freedom of expression based on the European Enlightenment and the deficiencies inherent in this framework. Modernity has disregarded the traditional roots of the freedom of expression drawn from Christianity, Greek philosophy, and Roman law, which has left the door open to the various forms of abuse, censorship, and restrictions seen in contemporary public discourse. Pujol proposes that we rebuild the foundations of the freedom of expression by returning to older traditions and incorporating both the field of pragmatics of language and theological and ethical concepts on human intentionality as new, complementary disciplines.

Pujol examines emblematic cases such as Charlie Hebdo, free speech on campus, and online content moderation to elaborate on the tensions that arise within the modern concept of freedom of expression. The book explores the main criticisms of the contemporary liberal tradition by communitarians, libertarians, feminists, and critical race theorists, and analyzes the gaps and contradictions within these traditions. Pujol ultimately offers a reconstruction project that involves bridging the chasm between the secular and the sacred and recognizing that religion is a font of meaning for millions of people, and as such has an inescapable place in the construction of a pluralist public sphere.

History is a valuable source for refining arguments and putting them into context. The recognition of human rights came from two very different revolutions that wanted to establish political freedoms, which were drawn up in constitutions. As Arendt notes, the French Revolution was more a liberation from the Old Regime, with sharp anti-clerical tones. The American Revolution, on the other hand, sought to establish freedoms and to create something new. Both traditions diverged not only philosophically but legally. French continental law was based on a broad set of complicated laws of the state that established the rules for the exercise of freedoms, trying not to avoid legal vacuums. The Anglo-American tradition, however, was based on common law and self-government by the citizens, limiting the regulatory power of the state. This has also determined its approach to freedom of expression as a negative right.

The grounding of these political freedoms is an ongoing battle. The shift from an original objective paradigm grounded in natural law to a more subjective paradigm—crafted by Harvard scholars—that is determined by social interests which change with culture and are determined by the state, has changed the way Americans think and speak about the First Amendment. This shift has deeply influenced the debate on the foundations of freedom of expression.

When looking at the source of these foundations and its problems, I have tried to look not only to the historical events like revolutions or key dates, but to the development of the history of ideas. This exercise in analyzing the source and the evolution of key notions related to freedom of expression helps us to understand further developments. In this sense, the genesis of modern individual liberty is rooted in Protestant thought. Following in the nominalist footsteps of Ockham, Luther separates freedom from its relationship with a natural order and natural ends (telos), and he distrusts the role of human practical reason, which does not discover through its operation the good to be done. Freedom becomes autonomous and subjective, and ultimately a mere choice of the will. This approach to individual freedom is a clue for understanding the journey of individual rights.

The chasms created by distrust in practical reason and the crisis of moral objectivity are filled by a framework of legal and moral positivism. On these grounds, a new authority has granted and continues to grant rights based exclusively in positive law, rejecting natural law as a foundation of rights and duties. This shift expanded the list of rights, for the sake of granting all desires, thereby becoming a champion of social freedoms. The conflicts between them were to be solved by a utilitarian calculation. I believe this functional positivist way of reasoning is incomplete and reductive. This is not a parochial argument, and it directly affects the philosophy of freedom of expression and its legal solutions. The Protestant notion of freedom in the public sphere fails to include an important nuance: the distinction between freedom and license, that is, the difference between freedom of expression and the abuse of expression. This is not a moralistic statement, but a shift in the idea of political freedoms that is rooted in Ockham and Luther.

Acknowledgements

Foreword by John D. Peters, Yale University

Introduction

Part I – Freedom of Expression under Threat: Emblematic Cases

1. I am not Charlie Hebdo. Defending Freedom of Expression but Not Its Content

2. The Paradox of Freedom of Expression on Campus

3. The Threat of Religious Fanaticism: Jyllands Posten and the Regensburg Address

4. The Rise of a New Orthodoxy: The Intolerance of Secular Relativism

5. Facebook’s Content Moderation Rule: Private Censorship of Public Discourse

PART II – The Liberal Tradition of Freedom of Expression and Its Contradictions

6. The Sustainability of the Liberal Rationale: Main Critiques

7. A Fabricated Notion of Tolerance

8. The Epistemological Shortfall: A Homogenous Concept of Discourse

9. The Anthropological Shortfall: Modernity’s Idea of Mankind

10. The Neutrality of the Public Space: A Useful Fiction

PART III – Historical and Philosophical Development of Freedom of Expression

11. The Origins of Freedom of Expression

12. Old-School and New-School Censorship

13. The Classical Tradition of the Founding Fathers of The United States

14. The Contemporary Tradition in the United States: Holmes and Harvard

15. The European Tradition: Hate Speech Laws

PART IV – Reconstructing the Foundations of Freedom of Expression

16. Reframing Freedom of Expression as a Human Good

17. Reconsidering the Legal Grounds

18. Reshaping the Harm Principle. Pragmatics of Language and Natural Ethics

19. Repairing the Relationship Between Secular and Sacred

20. Revisiting the Limits of Freedom of Expression

Sujets

• Philosophie
• Philosophie politique
• Éthique et morale
• Moral Philosophy
• Political
• POLITICAL SCIENCE
• PHILOSOPHY
• Philosophie et théologie
• Religión
• Freedom of speech
• Liberalism
• Censorship
• Pluralism
• Freedom of religion
• First Amendment to the United States Constitution
• Politics
• Hate speech
• Ethics
• Religion
• Harm

Informations

• Publié par: University of Notre Dame Press
• Date de parution: 15 février 2023
• Nombre de lectures: 0
• EAN13: 9780268203955
• Langue: English

Extrait

THE COLLAPSE OF FREEDOM OF EXPRESSION
CATHOLIC IDEAS FOR A SECULAR WORLD
O. Carter Snead, series editor

Under the sponsorship of the de Nicola Center for Ethics and Culture at the University of Notre Dame, the purpose of this interdisciplinary series is to feature authors from around the world who will expand the influence of Catholic thought on the most important conversations in academia and the public square. The series is “Catholic” in the sense that the books will emphasize and engage the enduring themes of human dignity and flourishing, the common good, truth, beauty, justice, and freedom in ways that reflect and deepen principles affirmed by the Catholic Church for millennia. It is not limited to Catholic authors or even works that explicitly take Catholic principles as a point of departure. Its books are intended to demonstrate the diversity and enhance the relevance of these enduring themes and principles in numerous subjects, ranging from the arts and humanities to the sciences.
THE COLLAPSE OF
FREEDOM OF EXPRESSION
Reconstructing the Ancient Roots of Modern Liberty
JORDI PUJOL

Foreword by
John Durham Peters
University of Notre Dame Press
Notre Dame, Indiana
University of Notre Dame Press
Notre Dame, Indiana 46556
undpress.nd.edu
All Rights Reserved
Copyright © 2023 by University of Notre Dame
Published in the United States of America
Library of Congress Control Number: 2022947715
ISBN: 978-0-268-20396-2 (Hardback)
ISBN: 978-0-268-20398-6 (WebPDF)
ISBN: 978-0-268-20395-5 (Epub)
This e-Book was converted from the original source file by a third-party vendor. Readers who notice any formatting, textual, or readability issues are encouraged to contact the publisher at [e-mail]
Dedicated to Norberto González Gaitano and the School of Church Communications (Pontifical University of Santa Croce)
CONTENTS
Foreword: We Must Not Be Enemies John Durham Peters
Acknowledgments
Introduction
PART I Freedom of Expression under Threat: Emblematic Cases
ONE. I Am Not Charlie Hebdo: Defending Freedom of Expression but Not Its Content
TWO. The Paradox of Freedom of Expression on Campus
THREE. The Threat of Religious Fanaticism: Jyllands-Posten and the Regensburg Address
FOUR. The Rise of a New Orthodoxy: The Intolerance of Secular Relativism
FIVE. Facebook’s Content Moderation Rule: Private Censorship of Public Discourse
PART II The Liberal Tradition of Freedom of Expression and Its Contradictions
SIX. The Sustainability of the Liberal Rationale: Main Critiques
SEVEN. A Fabricated Notion of Tolerance

EIGHT. The Epistemological Shortfall: A Homogenous Concept of Discourse
NINE. The Anthropological Shortfall: Modernity’s Idea of Mankind
TEN. The Neutrality of the Public Space: A Useful Fiction
PART III The Historical and Philosophical Development of Freedom of Expression
ELEVEN. The Origins of Freedom of Expression
TWELVE. Old-School and New-School Censorship
THIRTEEN. The Classical Tradition of the Founding Fathers of the United States
FOURTEEN. The Contemporary Redefinition of the Free Speech Tradition in the United States
FIFTEEN. The European Tradition: Hate Speech Laws
PART IV Reconstructing the Foundations of Freedom of Expression
SIXTEEN. Reframing Freedom of Expression as a Human Good
SEVENTEEN. Reconsidering the Legal Grounds
EIGHTTEEN. Reshaping the Harm Principle: Pragmatics of Language and Natural Ethics
NINETEEN. Repairing the Relationship between the Secular and the Sacred
TWENTY. Revisiting the Limits of Freedom of Expression
Conclusion
Notes
Index
FOREWORD
We Must Not Be Enemies
This book comes from a thinker immersed in the tradition of Christian humanism who faces the Anglo-American liberal tradition with judiciousness, erudition, and occasional—but highly productive—puzzlement. The result is an orchestration, rapprochement, or encounter of two rich (and by no means always internally homogenous) sources for thinking about free speech. The book is both classical and contemporary. It offers a traditional answer—in the best sense—for nontraditional times. It is a mansion of many chambers and draws on many disciplines: the history of ideas, law, philosophy, theology, ethics, politics, and media studies. Its case studies are highly informative, and if you want to learn about how chain reactions of news and outrage work in real time, for instance, this is the place. Fr. Jordi Pujol’s account of the sources and ends of free speech assesses the confusions and commotions of our digital moment and is at once informative, compelling, and wise. The world would be a better place if we all heeded its teachings!
In its critical appreciation and reconstruction of the Anglo-American tradition of thinking about free speech, the book celebrates what the liberal tradition offers at its best: a vision of free speech as a human good. And yet the book checks the liberal tradition’s tendency to become hollow and rootless, especially in the past century. Transgressive, offensive speech is not an end in itself. It is a means, a catalyst, a spice of liberty, a goad to education and reflection. Pujol has a genuine admiration for, along with a healthy skepticism toward, the Anglo-American tradition. He is no scold, spoilsport, or killjoy. He recognizes that satire can advance public debate and even afford public pleasure and amusement. Free speech can be fun!
Pujol’s mode of thinking is to be consistently humane, open, reflective, and questioning, dialectically balancing, repeatedly steering us into paradoxes. In this he practices what he preaches. His analysis models the norms and attitudes it advances. Thus, though Pujol firmly supports free speech as a legal, political, and ethical principle, he also thinks those newspaper editors were wise who refused to reprint the Charlie Hebdo pictures that were designed to insult Islam. He prefers the Australian policy of recognizing the public realm as consisting of plural neutralities to the French policy of embracing a single, all-bulldozing laïcité (secularism). His account of free speech does not ban subtlety and prudence: it calls for them. For him, free speech is not what he colorfully calls a “perpetual carnival” of suspended rules! A philosophy of free speech should not disable our discernment about what is good and bad in the public realm. It should enhance it.
The book is thus also a diagnosis of modernity and of the hazards of burning up the finite fossil fuels of the European tradition. It is striking that early modern thinkers about free speech insisted on thick moral foundations. In his treatise Areopagitica (1644), for instance, John Milton stated that his purpose was “to advance the public good.” Tunis Wortman, an early American lawyer influenced by Thomas Jefferson, wrote in his fascinating Treatise, Concerning Political Inquiry, and the Freedom of the Press (1800): “The freedom of speech and opinion, is not only necessary to the happiness of Man, considered as a Moral and Intellectual Being, but indispensably requisite to the perpetuation of Civil Liberty.” Here he treats free speech as a question of moral and political philosophy and does so within a clear vision of human flourishing. Interestingly, Wortman’s twin poles of danger—the extremes to which societies can lean or lurch in either direction—are “licentiousness” and “despotism,” which he also sometimes calls “anarchy” and “tyranny.” These worries, found among a variety of modern political thinkers concerned with the fate of democracy (such as Montesquieu, Madison, and Mill, to stick to the letter M), have a certain similarity to Pujol’s extremes of relativism and fundamentalism. Chaos or confusion (as license) and compulsion or closure (as overreaction to the effects of license) have long been the dangers that haunt liberty in all of its forms.
Pujol deplores the separation of speech from morality and a purely formalist approach to the public realm (i.e., the principled indifference to the content, media, and effects of speech). In part, the thinkers of the Enlightenment saw the horrid effects of religious warfare and made a pragmatic compromise. Toleration was an expedient solution to violence based on religious difference. But this compromise stuffed faith into the private realm and flattened much of law into a question of process or form. The resulting risk was nihilism about the very materials of public life. Pujol calls for a reconstructed and richer genealogy of free speech that would place the toleration of extremity within a vision of the common good and of the discovery of truth. In this he mirrors a point that emerged in a 2004 discussion between two towering white-haired German professors born in the late 1920s, Jürgen Habermas and Joseph Ratzinger, the atheist critical theorist and the future Pope Benedict XVI: that modernity cannot be casual in its reliance upon the nonrenewable moral resources of Greek, Roman, Jewish, and Christian traditions. This book similarly engages in both a friendly and a serious exchange of views and a long-term vision of stewardship for our collective life.
Indeed, it is remarkable how systematically and scrupulously Pujol meets the liberal tradition on its own terms. He does not lead with his own theological framework or philosophical anthropology, though there is no question where he ultimately stands on the nature of God or humanity. Rather, he leaves his potentially partisan tenets in the background. In this book he seeks common ground and speaks the dominant secular language of scholarship. This was a point of Habermas—that people of faith bear an asymmetric burden in a secular public sphere because they need to be bilingual. They must translate their faith into terms that can pass through a plural and noncommitted public. (This is literally the case in that Pujol wrote this book in his second language, English, the current world tongue of scholarship as well as of