Abstract
In this paper I provide an interpretation of Kant’s conception of free speech. Free speech is understood as the kind of speech that is constitutive of interaction respectful of everybody’s right to freedom, and it requires what we with John Rawls may call ‘public reason.’ Public reason so understood refers to how the public authority must reason in order to properly specify the political relation between citizens. My main aim is to give us some reasons for taking a renewed interest in Kant’s conception of free speech, including his account of public reason. Kant’s position provides resources for dealing with many of the legal and political problems we currently struggle to analyze under this heading, such as the proper distinction between the sphere of justice and the sphere of ethics, hate speech, freedom of speech, defamation, and the public guarantee of reliable media and universal education.
I am grateful to Deirdre Golash, Arthur Ripstein, David Sussman, Shelley Weinberg, and Howard Williams for useful input as I developed the ideas in this paper. I am also grateful to the participants in the workshop in ethics at the Department of Philosophy at the University of Illinois at Urbana-Champaign, and the audiences at AMINTAPHIL Conference “Free Speech in a Diverse World”, Villanova University, Sept. 25–28, 2008 and the APA Pacific Division, Vancouver (Canada), April, 2009.
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Notes
- 1.
See, for example, Paul Guyer, Kant (New York: Routledge, 2006); Sarah Williams Holtman, “Revolution, Contradiction, and Kantian Citizenship,” in Kant’s Metaphysics of Morals, ed. M. Timmons (New York: Oxford University Press, 2002), 209; Otfried Höffe, Immanuel Kant, trans. Marshall Farrier (Albany: SUNY Press, 1994), 186f; Wolfgang Kersting, “Kant’s Concept of the State,” in Essays on Kant’s Political Philosophy, ed. H.L Williams (Chicago: University of Chicago Press, 1992), 143, though contrast with his “Politics, freedom, and order: Kant’s Political Philosophy,” in The Cambridge Companion to Kant, ed. Paul Guyer (New York: Cambridge University Press: 1992), 342; Allen D. Rosen, Kant’s Theory of Justice (New York: Cornell University Press: 1993); Howard L. Williams, Kant’s Political Philosophy (New York: St. Martin’s Press: 1983), 198. Though this absolutist reading of Kant is particularly encouraged by “On the Common Saying: That may be Correct In Theory, but It Is of No Use in Practice”, especially pp. 8: 303ff, I argue against it in “Kant’s Non-Absolutist Conception of Political Legitimacy” (Kant-Studien, forthcoming). All references refer to the Prussian Academy pagination of Kant’s work. I have used Mary Gregor’s translations of The Metaphysics of Morals, (New York: Cambridge University Press, 1996), and of his other texts in Practical Philosophy, (New York: Cambridge University Press, 2006).
- 2.
The analysis therefore changes if the music is not extremely loud, but merely annoying or causing inconvenience. In these cases, the sound waves do not have the debilitating effect I’m describing above. The judgment of particular cases – whether they are merely annoying, debilitating, intentional or non-intentional – befalls, as we will see shortly, to the public authority.
- 3.
One’s good reputation should not to be understood as “a thing”, Kant argues, but as “an innate external belonging, though an ideal one only, which clings to the subject as a person, a being of such a nature that I can and must abstract from whether he ceases to be entirely at his death or whether he survives as a person; for in the context of his rights in relation to others, I actually regard every person simply in terms of his humanity, hence as homo noumenon” 6: 295.
- 4.
In the Doctrine of Right Kant says that defamation is not punishable by “the criminal court”, but only by “public opinion, which in accordance with the right of retribution, inflicts on him the same loss of the honor he diminishes in another”, Ibid., 6: 296n. One might be tempted to conclude that Kant rejects the idea that defamation is a legal issue at all. But this would be mistaken, for in 6:295, Kant explicitly confirms that defamation after death can “take effect only in a public rightful condition, but… [it is] not based only on its constitution and the chosen statutes in it… [it is] also conceivable a priori in the state of nature and must be conceived as prior to such status, in order that laws in the civil constitution may afterwards be adapted to them.” Reading defamation to be a legal issue also gains support from this passage in the Doctrine of Virtue: “false defamation… [is] to be taken before a court”, Ibid., 6: 466. Consequently, when Kant argues in the Doctrine of Right that defamation cases should not be taken before a criminal court, he should be seen as identifying the proper venue for defamation cases, namely civil (rather than criminal) court. And when Kant says that the punishment should be loss of honor, he means that the proper punishment meted out by the civil court is loss of honor.
- 5.
I give an interpretation of this argument in my “Kant’s Non-Voluntarist Conception of Political Obligations: Why Justice is Impossible in the State of Nature,” Kantian Review, Vol. 13, No. 2 (2008): 1–45.
- 6.
To stay faithful to Kant’s own text, I have replaced Mary Gregor’s translation of “rechtliebend” (‘law-abiding’) with ‘right-loving’. Moreover, Gregor uses ‘it’ instead of a ‘him’ or ‘her’ here, and since this is confusing, I have replaced it with ‘her.’
- 7.
Ibid., 6: 314. Rawls seems to share this feature with Kant. It is especially prominent in his later writings (Political Liberalism onwards) since there he increasingly emphasizes both the public aspect of his theory as well as that the theory is based on the citizens’ two moral capacities.
- 8.
Kant considers there to be three forms of state, namely autocracy (rule by one), aristocracy (rule by nobility) and democracy (rule by the many), (6: 340).
- 9.
In “A Kantian Conception of Rightful Sexual Relations: Sex, (Gay) Marriage and Prostitution,” Social Philosophy Today, Vol. 22 (2007): 199–218, I argue that it is because citizens have a right to access protection by private right that gays and lesbians have a right to marriage. This is why same-sex marriage is a constitutional right. In “A Kantian, Feminist Conception of Abortion and Homosexuality,” in Analytical Feminist Contributions to Traditional Philosophy, eds. Anita M. Superson and Sharon Crasnow, I argue similarly that sodomy and abortion laws are constitutional issues; they involve rights to bodily integrity and hence are covered in US law under the term ‘a right to privacy’. I employ a similar argument in “Kant’s Non-Absolutist Conception of Political Legitimacy: How Public Right ‘Concludes’ Private Right in ‘The Doctrine of Right’”, Kant Studien (forthcoming), to justify the claim that the legitimacy of the German state dissolved once it introduced laws denying private property to Jews.
- 10.
Hence, even if the voluntarist would agree with Kant up to this point, I take it that the voluntarist position cannot make sense of the need for the additional provisions for systemic justice. Therefore, if the argument presented below succeeds, then voluntarism as it is typically understood fails as a liberal approach to analyze the state’s coercive authority.
- 11.
See my “Kant and Dependency Relations: Kant on the State’s Right to Redistribute Resources to Protect the Rights of Dependents”, Dialogue XLV (2006): 257–284, and “Kant’s Non-Absolutist Conception of Political Legitimacy” (Kant-Studien, forthcoming) for further discussion of these public right principles.
- 12.
For an excellent discussion of Kant’s distinction between private and public reason, see Jonathan Peterson’s “Enlightenment and Freedom,” Journal of the History of Philosophy, Vol. 46, No. 2 (April 2008): 223–244.
- 13.
I think this argument applies to any private system on which the state allows its citizens to be dependent for the exercise of their rights.
- 14.
Note that libertarian theories of justice have a hard time making sense of these kinds of regulation. Because they are committed to the view that the rights of the state are reducible to those of individuals, any restrictions must be understood in terms of private harms.
- 15.
See Ann E. Cudd, Analyzing Oppression (New York: Oxford University Press, 2006) for an excellent discussion of these features of oppression.
- 16.
As is well known, criminal statistics affirm that ethnic and religious minorities, women, gays and lesbians, for example, are still frequent subjects of violence – whether by private individuals or by public officials – merely in virtue of their ethnic, religious or gender identity and their sexual orientation. Naturally, the fact that violence against citizens due to their sexual orientation is not covered in hate crime legislation in many U.S. states does nothing to mitigate this point. Rather, it signals one way the state currently fails to enable conditions of rightful interaction for all of its citizens.
- 17.
I am tremendously grateful to David Sussman and Arthur Ripstein for discussion on this point, which, of course, is not to say that they necessarily agree with my view.
- 18.
There are some exceptions to this general rule, such as, for example, we find in doctor-patient and attorney-client privilege, that I cannot consider here.
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Varden, H. (2010). A Kantian Conception of Free Speech. In: Golash, D. (eds) Freedom of Expression in a Diverse World. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8999-1_4
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