If any philosopher is supposed to have been an absolutist about free speech, it is John Stuart Mill. To be sure, he denied that you could incite violence against specific individuals. But this is the only restriction countenanced in On Liberty, which more than 150 years since its publication remains the most famous document in favor of free speech. The incitement caveat appears in the book in very circumscribed fashion. As Mill sliced it, one could not preach death to corn-dealers “to an excited mob assembled before the house of a corn-dealer,” but that did not mean that holders of the “opinion that corn-dealers are starvers of the poor, or that private property is robbery,” should be in any way “molested” if they disseminated their views in other contexts. So long, then, as you weren’t whipping up a crowd to assault a person directly in the line of its rage, your speech was in the clear.
The trouble, though, is that this common picture of Mill is incomplete. While Mill advocated an exceedingly broad scope for free speech, he didn’t, as almost everyone assumes, rule out only the instigation to immediate violence. Although only a few scholars have recognized it, Mill actually called for the legal restriction of a significant category of speech. Taking this fact into account at once complicates received understandings of Mill and prompts us to ask what might really be required to end cancel culture and achieve a truly liberal sphere of public debate.
On Liberty was hardly Mill’s first foray into debates about free speech. He had been writing energetically in favor of greater liberty of expression since he was a teenager. Only once in that time did Mill advocate for less than the maximally libertarian position on offer. This was in his late-20s, two decades before he would begin drafting On Liberty. Despite this being a relatively youthful production, Mill never retracted the view, and there is no reason to think he changed his mind.
The circumstance was this: In 1834, the Irish nationalist politician Daniel O’Connell introduced a bill to curtail the reach of the libel law which, since Britain had long ago done away with any prior censorship, was the (often very effective) means by which speech was legally restrained in the early 19th century. In response to the bill’s appearance, and as we would expect, Mill contended passionately that the law regarding seditious and blasphemous libel, which constrained discussion about politics and religion, needed to be liberalized if England were to be considered a free country. But in a column for a radical Unitarian periodical to which he was then contributing, Mill castigated O’Connell for going “too far” in one direction. This concerned the law of personal or private libel, which Mill believed O’Connell’s proposal would weaken unduly.
Mill agreed that in public matters, the truth of a charge should be a defense against libel. But, he continued, “we would not permit the press to impute, even truly, acts, however discreditable, which are in their nature private. We would not allow the truth of such imputation to be even pleaded in mitigation.” Mill argued that any judicial proceeding aimed at establishing the truth of a libelous statement would only aggravate the initial offense, by subjecting the libeled man’s private affairs to public scrutiny. “We see insuperable objections to allowing the details of a person’s private conduct to be made the subject of judicial investigation, at the pleasure of any malignant accuser,” he continued. “We are not insensible to the prestige attaching to the word truth, and we go farther than most persons would like, in maintaining that it is good to speak the truth, whatever be the consequences. But it is not the letter of the truth, it is the spirit that is wanted; and, unhappily, the letter is all that admits of being substantiated in a Court of Justice.”
Further, Mill believed that certain private matters are inevitably distorted and misunderstood when they were dragged into public. “Every one knows how easy it is, without falsifying a single fact, to give the falsest possible impression of any occurrence,” he wrote. This was especially true of private life, in which
the whole morality of a transaction commonly depends upon circumstances which neither a tribunal nor the public can possibly be enabled to judge of.Let any person call to his recollection the particulars of any family quarrel, for example…and think how absolutely impracticable it would be to place before the public any thing approaching to the most distant likeness of the real features of the case!… Any “truth” which can be told to the public on such matters must almost necessarily be, with respect to some party concerned, a cruel falsehood.
This didn’t mean that Mill believed private conduct was to be exempted from reproof or scrutiny. But he believed that “the proper tribunal for the cognizance of private immoralities … is the opinion of a person’s friends and connexions; who have some knowledge of the person himself, and of the previous circumstances, and therefore something to guide them in estimating both the probabilities of the case and the morality of it.”
“Mill sought to prohibit even true accounts of admittedly bad behavior in private life.”
For these reasons, Mill sought to prohibit even true accounts of admittedly bad behavior in private life—and that even for public figures. The so-called court of public opinion could never be a fit forum for grappling with such stories in a way that was fair and tracked the truth.
Mill’s opposition to the admission of truth as a defense in the airing of harmful claims about others’ personal lives wasn’t an ephemeral outburst. After a friend disapproved of the article, Mill not only stood his ground, but made clear that he regarded his position as stemming from quintessential liberal values. Airing private matters in public wouldn’t promote “tolerance, freedom, and sincerity.” Weighing the quality of a person’s character based on bits of his history almost unavoidably wrenched from context and lacking the requisite sensitivity to relevant information was not something that could be done at all well through the media. Permitting the airing of such tales would mean the transformation of the public sphere into an arena for character assassination.
Mill made two predictions about what would follow if truth were made a defense for personal libel. First, the ability to act with integrity, to live and speak in accordance with one’s actual convictions, would be fatally compromised: “The lives of all but the independent in fortune & brave in heart, would be thoroughly artificialized, by becoming one continued struggle to save appearances & escape misinterpretation.” It was precisely in the years surrounding the writing of these lines that Mill had begun articulating what would become major themes of his most famous work: the imperative of protecting “individuality” from the conformist pressure of mass opinion, and the ethical or characterological basis for free expression, as opposed to the more narrowly political account focused on rooting out corruption and ensuring rulers’ accountability central to the radical milieu in which he was raised. The outlook of On Liberty, it seems, demanded eliminating the scrutiny of personal life from the press. The artificialization of sociability was a fate Mill spilled much ink warning against over the course of his career. But a press and speech regime that tolerated scandal-mongering, he thought, would guarantee that sad outcome.
The second result that Mill foresaw from loosening the law of personal libel was the collapse of faith in the press and the onset of what we might now call a “post-truth” society. “Freedom” as O’Connell wrongly understood it, Mill warned his correspondent, “would work itself out by what seems to have taken place in America, calumny & scandal carried to such a length that nobody believes anything which appears in print.” We would all become cramped and stilted in our conduct and expression, we would create a culture of fretfully toeing the line and keeping our fingers constantly in the wind, and/or the media establishment would lose credibility and its crucial role of helping citizens to sift fact from fiction would go unfilled.
Exposure of unflattering aspects of another’s conduct, unless it occurred directly in the course of exercising a public function, was thus quite simply not to be made legally permissible. Such was the unambiguous verdict of “the patron saint of liberalism.”
Mill’s insistence that truth not qualify as a defense for personal libel immediately raises a question: How exactly are we to draw the line between public and private? Notoriously, this concern dovetails with one of the oldest and thorniest criticisms of On Liberty: that (in the language of that later work) Mill divided “self-regarding” from “other-regarding” conduct with a tidiness that wasn’t credible. Further, in our age of “the personal is political,” many will deny that any such distinction can be drawn at all. To them it must be conceded that it would be a fool’s errand to suggest that we could fix the boundary once and for all; as the character of civil society changes over time, the exact placement of the line between public and private needs every so often to be renegotiated. But all worldviews that don’t hold the individual to be simply and entirely the property of the state are committed to drawing the line somewhere and to preventing that line from being crossed, even in the name of advancing a favored cause or exposing a “bad” sort of person.
“Mill’s position on personal libel is a challenge to many modern-day Millians.”
Further, Mill’s position on personal libel is a challenge to many modern-day Millians, those who incant reflexively that the “remedy for bad speech is more speech.” Now, they are certainly correct that their hero broadly agreed with that slogan, although he didn’t hold the simpleminded view, oft attributed to him, that truth would win out in every particular argument; instead, his position was the more moderate one that over the long-haul truth was likely to fare better in a libertarian speech regime than in a restrictive one. But as we can now see, Mill didn’t completely concur with this “counter-speech doctrine.” For an important category of speech—that shedding a negative light on nonpublic domains—Mill didn’t think that “more speech” could do the trick. Having to defend oneself from such claims usually just aggravated the damage and was itself a kind of severe social punishment that a liberal society shouldn’t allow to be inflicted on citizens; there was no real correcting of the record in such cases. Hence personal accusations, regardless of their accuracy, weren’t to be countered by “better speech,” but to be denied the protection of the law altogether. Moreover, Mill believed giving legal sanction to such imputations would, as noted above, unleash a vicious arms race, what he described as “a general inquisition into private life.” Far from all such sordid and unenlightening material, On Liberty was directed at vindicating the epistemic advantages of “freedom of discussion” about religion, politics, morals, and science, where Mill held that if we properly understood the dynamics of debate in an open public sphere we could see that even very wrongheaded ideas often helped us to grasp the truth by one route or another. None of this applied to attacks on the reputation of persons, which hence didn’t qualify as of a piece with the “discussion” for which On Liberty was an apologia.
A conventional way of thinking about why we might wish to restrict certain kinds of speech is that they are inconsistent with some other important value. One such value that has traditionally been invoked is stability—social order simply couldn’t survive (what were often called) “licentious” denigrations of religion, morality, or government. Recently, dignity, respect, inclusion, and the feeling of safety have been frequently cited. On Liberty is devoted to proving that the benefits of free discussion outweigh any costs that might be born in terms of these other values. Nevertheless, to the careful reader of On Liberty, the rather significant curtailment of speech that Mill had earlier endorsed ought not to be too surprising. For that “gospel of the 19th century,” as the Liberal critic Leslie Stephen hailed it, was itself devoted to two values: freedom of discussion and what Mill called “individuality,” or the right to conduct one’s private life as one chose without facing negative legal or social consequences. Now, as Mill knew well, a great vehicle for fastening the “yoke of public opinion” and effectively ostracizing those who had unusual habits or who had for whatever reason made themselves unpopular was by broadcasting their personal information. In this respect, Mill’s famous tract was one long diatribe against gossip; high on the list of the enemies of liberty were those who shunned or browbeat or restricted the opportunities of others who had done them no injury but about whom they had heard something unsavory.
Spreading accusations through the newspapers wasn’t, for Mill, a valuable contribution to public life, but just malign busybodying on a larger scale. That journalists who did so could convince themselves that they were acting for the good of the community wouldn’t have surprised Mill; it was precisely because intruders on private life, like enforcers of censorship, were so often certain that their activities conduced to the public welfare that a vigorous argument was needed to counter that perception. The mobilization of stigma that is ineluctably involved in exposure of unflattering dimensions of private life fell well within the category of what Mill described as “visiting evil upon” one’s fellows. On Liberty argued that this modus operandi was morally wrong and worthy of public condemnation. Mill’s earlier writings were quite consistent with this reasoning, but pushed it even further, suggesting that only legal prohibition and penalty were adequate to the problem.
Mill’s objection to O’Connell’s proposed libel-law reform, then, can be seen as an early attempt to strike a balance between the two values that would sit at the heart of On Liberty, giving up a little latitude on the speech side for the sake of ensuring greater security for that realm of private life without which the individual personality could not fruitfully develop. And yet, there is another way of thinking about why Mill might have landed on this position, one that is internal to the value of free speech itself. This other approach is glimpsed in the quotations above, in which Mill lamented the artificialization of social intercourse, the decline of sincerity and tolerance, and the constant worry about the fatal reputational consequences of being misinterpreted that would result from admitting truth as a defense for personal libel. The concern here is that unless this particularly nefarious kind of speech is put down, the kinds of speech that are core to a free society—clashes over “the great practical concerns of life,” “the free discussion of doctrines, or of institutions,” the unsparing critique of government performance—will be imperiled. Where exposure of private misdeeds is an accepted part of the culture, people will keep their true beliefs to themselves, will obfuscate their real meaning or become hypocrites, rather than make themselves a target for those who might rifle through their entire histories.
Anyone who has observed the operations of cancel culture can see the point toward which Mill was groping. Those who defend unfashionable views are liable to find no stone in their lives left unturned, either by the labors of the establishment media or of social-media mobs. A misplaced word, a heated exchange, a misfired joke, an uncomfortable interaction, a slip in decorum, a genuinely wrong act for which one has already atoned and which has no bearing on the relevance of the arguments one is making—all of these, it seems, are apt to be exposed to the world if one speaks out on the “unacceptable” side of a salient issue.
“Where character assassination is tolerated, mass dishonesty is sure to follow.”
When the publicizing of personal details is an accepted practice, the safest course for dissenters to follow will be either to keep quiet or to mouth insincerely the shibboleths of the moment while hoping the fever passes quickly. The mentality of “the minister’s wife must be beyond reproach” becomes widespread; and in consequence, timidity in expressing oneself and cowardice in considering arguments wherever they lead take root. Where character assassination is tolerated, mass dishonesty is sure to follow. Debate becomes truncated. And because of this prudent silence or quasi-coerced hypocrisy, new intellectual and creative endeavors are snuffed out in their infancy. This is, in the end, the gravest problem with cancel culture. It stifles talent and deprives society of the insight and conviction we sorely need.
The conflict that Mill seems to have perceived between these two kinds of speech is perfectly intuitive, if seldom analyzed rigorously. We can see its logic at work in familiar usages like the “Chatham House Rule.” This rule, often employed for conferences or meetings where free and fearless dialogue about a sensitive topic is essential, prevents identifying speakers to the wider world. Here we have the restriction of one type of speech (naming participants so that they might face some sort of public reprisal by those who disliked their contributions) for the sake of stimulating another type of speech (honest engagement in substantive debate) deemed more valuable. One can see the conflict play out at universities as well, where the alarming rates of self-censorship reported in surveys are (I am convinced) no longer driven primarily by fear of drawing a lower grade from a biased professor, but rather by apprehension that a verbal misstep might incite the zealous on campus to seek to damage one’s social and professional prospects for years to come by taking to social media or contacting prospective future employers. In this setting, again, we can see that the prevalence of one kind of speech—the public branding of a wrong-speaker as an -ist or -phobe or the dredging up of some misbehavior by him once he has been so branded—inhibits another kind of speech supposed to be essential to the university: namely, the reckoning with difficult problems and ideas. Viral personal attacks, and the earnest grappling with hard questions, cannot coexist.
It is worth stressing that Mill didn’t believe that one had to play nice or be civil. Victorian public discourse was exceedingly vitriolic, and Mill was very comfortable swimming in these waters. His writing is replete with sharp mockery of his adversaries; he defended mass demonstrations even when they became unruly; and he had no compunction about calling Conservatives “the stupid party” on the floor of the House of Commons. Progress on social questions wasn’t a pretty affair, but instead arose from “the rough process of a struggle between combatants fighting under hostile banners.” Yet harsh as we might be in our disagreements, personal character and conduct, Mill thought, must remain out of bounds. This was the limiting principle that allowed the speech that was integral to a free society to flourish.
Probably few among us today would follow Mill to the extent of his desired legal stringency; in any case, in the United States, our jurisprudential tradition precludes our adopting Mill’s preferred legal solution (though at least one creative lawyer hopes that a reworking of “intentional interference torts” might provide legal redress for some “cancellations”). Still, we can strive to align our mores with Mill’s vision. We could, for instance, treat Mill’s thought on personal libel law as a regulative ideal for the culture. This would mean developing a norm of condemning those, be they journalists or participants in social media pile-ons, who engage in this sort of personal attack-mongering—no matter how dislikable we may find the person targeted. Indeed, in recent years, our norms have approximated the inverse of Mill’s desideratum, with discussion of many substantive topics set beyond the pale while vicious imputations came to be regarded as an essential tool for the pursuit of social justice. While there has been much commotion about the need to defend liberalism from various illiberal challengers, from a Millian perspective, our society is already far less liberal than some would like to believe. For a liberal society, as Mill understood it, isn’t one in which dread of ensuing reputational or professional harm impedes all but the thoroughly saintly from speaking their minds. And yet it is in exactly such an atmosphere that we have been living for some time now.