E145 -

This week Aaron Ross Powell, Trevor Burrus, John Samples, and Matthew Feeney discuss 19th century philosopher John Stuart Mill’s idea of “civil liberty.”

Aaron Ross Powell
Director and Editor
Trevor Burrus
Research Fellow, Constitutional Studies

John Samples directs Cato’s Center for Representative Government, which studies campaign finance regulation, delegation of legislative authority, term limits, and the political culture of limited government and the civic virtues necessary for liberty. He is an adjunct professor at Johns Hopkins University. Samples is the author of The Struggle to Limit Government: A Modern Political History and The Fallacy of Campaign Finance Reform. Prior to joining Cato, Samples served eight years as director of Georgetown University Press, and before that, as vice president of the Twentieth Century Fund. He has published scholarly articles in Society, History of Political Thought, and Telos. Samples has also been featured in mainstream publications like USA Today, the New York Times, and the Los Angeles Times. He has appeared on NPR, Fox News Channel, and MSNBC. Samples received his Ph.D. in political science from Rutgers University.

Matthew Feeney is the director of Cato’s Project on Emerging Technologies, where he works on issues concerning the intersection of new technologies and civil liberties. . Before coming to Cato, Matthew worked at Reason magazine as assistant editor of Rea​son​.com. He has also worked at The American Conservative, the Liberal Democrats, and the Institute of Economic Affairs. Matthew is a dual British/​American citizen and received both his B.A and M.A in philosophy from the University of Reading in England.

John Stuart Mill (1806–1873) was a foundational utilitarian philosopher, as well as one of the foremost thinkers in the classical liberal tradition.

John Samples and Matthew Feeney join us for a discussion on the theory of liberty Mill articulates in his book On Liberty. We focus on how Mill thinks of liberty in relation to others and to the state, how utilitarianism influenced his thinking, and Mill’s defense of freedom of thought and free speech, which was quite radical for his time.

This episode is part one of a series that will be continued at a later date.

Show Notes and Further Reading

The Liberty Fund’s Library of Economics and Liberty has the full text of On Liberty available for free .

When discussing Mill’s views about tolerating divergent opinion, Aaron mentions this previous Free Thoughts podcast with Andrew Jason Cohen on toleration.



Aaron Ross Powell: Welcome to Free Thoughts from Lib​er​tar​i​an​ism​.org and the Cato Institute, I’m Aaron Powell.

Trevor Burrus: I’m Trevor Burrus.

John Samples: I’m John Samples.

Matthew Feeney: And I’m Matthew Feeney.

Aaron Ross Powell: Today we are going to be speaking about the first half of John Stewart Mill’s classic text On Liberty. This text is one of the central pieces of the western classical liberal tradition. The argument that the state and society, which we will get to and Mill has some interesting arguments about that, are very limited in what they can do to restrict the individual; both in terms of his actions and, more importantly for what we’re going to talk about today, his opinions and his expression of those opinions. So our topic, just to kick things off, is what Mill calls civil liberty. So this is the liberty that we have in relation to others and to the state. And he’s approaching this, we should say for a bit of background, from a utilitarian perspective.

Mill’s text, Utilitarianism, is one of the great works of that tradition. He grew up heavily influenced by Jeremy Bentham, the founder of that tradition.

Trevor Burrus: And his father.

Aaron Ross Powell: And his father, Mill has a very interesting backstory that his father decided to kind of forge the ultimate mind.

Trevor Burrus: I think he wanted to forge the utilitarian philosopher in the same way you want your kids to be start wars fans, I think it was like everyday Mill had to do this and like go to the conventions.

Aaron Ross Powell: Yes, I mean his father seemed rather more committed to it than I am.

Trevor Burrus: Probably.

John Samples: It might also explain the nervous breakdown that John Stuart Mill had when he was twenty or something like that.

Aaron Ross Powell: Yes, although I mean we even say it’s hard to draw lines of causation here, Mill was a rather brilliant guy but I still think there are things I disagree with in On Liberty but I think that probably outside of maybe Plato the best written text in the Western philosophical cannon.

John Samples: Have you ever read Nietzsche?

Aaron Ross Powell: He’s a better writer than Nietzsche, it’s remarkably well written.

Matthew Feeney: Plato.

John Samples: Well Nietzsche is better than those two.

Aaron Ross Powell: So John, as our least frequent contributor to the podcast, why don’t you kick us off?

John Samples: So what struck me about it in re‐​reading this after a long time, and probably longer than I want to admit, is how contemporary it is because sometimes I mean if you read Machiavelli, The Prince, you get this idea that there is, and a lot of the interpretation adds to this idea, that there is a historical context and you can get these abstractions that have to do with now. But you’ve got to go, you’ve got to work at it. What struck me about this is, and the point may be that we are just downstream from him and he created the river right? But what struck me about it is that every issue is the issue we’re still debating today or if it’s not it strongly implies it.

Take for example the notion of free speech, the whole we had at the time of Black Lives Matter around a year or two ago, it was claims about the need for limiting speech and so on. But those were the same arguments right? They were about the harm done. I think it was a brilliant piece because I thought it would probably sound like it was 1830 or whatever in Britain and you would get used to that but it’s not, it’s right now.

Aaron Ross Powell: I mean it’s striking at times because you’re reading it and you can very easily just outright forget that the book is as old as it is until he mentions in passing some rather contemporary like…

Trevor Burrus: To him.

Aaron Ross Powell: Like he’ll say as an example when he will say that corn dealers are starving the poor. But outside of those random specific instances the book reads…you could republish it today and no one would know.

Matthew Feeney: Yeah I think on some of the earlier points at the beginning of the book it did read to me as something that could have been written last week. He quotes about the increasing inclination to stretch unduly the power of the society over the individual and mentions that people are prone to intolerance and all that kind of stuff. I mean he does say that his arguments don’t work for backwards states; that is something that we disagree with but…

Aaron Ross Powell: The actual quote, I have it in my notes is, “Despotism is a legitimate mode of government in dealing with barbarians provided that the end be their improvement and the means justify it by actually affecting that end.” Since he was involved actually with managing India I guess that would explain partially…

John Samples: Well I have to say now, having listened to Tony Blair this morning about the invasion of Iraq…

Trevor Burrus: What? Did Tony Blair comment this morning about the invasion of Iraq?

John Samples: Oh yeah.

Matthew Feeney: The Chilcot Inquiry.

John Samples: But the general point on John Stuart Mill is: Let’s imagine the goals were to get rid of the dictator, that was a more expansive agenda about changing the culture and turning it into a democracy which implies either a couple of things; one is –which I think was the position taken, because Mill’s position had been rejected – is that if you just get rid of the bad guy then things will be fine but if that’s not true, as it turned out not to be because people were very tribal among other reasons, then you get something like Mill as the assumption right? There’s people that aren’t ready for liberal democracy. Now George Bush wasn’t like that and Tony Blair wasn’t like that but on the other hand they made a mess too.

Aaron Ross Powell: Well I think a lot of people believe that there are people not ready for liberal democracy but I think it doesn’t follow from that despotism is the only legitimate form of government they can exist under. And of course there’s different ways to have illiberalism that are not despotism.

John Samples: It’s a funny term too, to use the term despotism as something good is an odd choice.

Aaron Ross Powell: That’s sort of the overarching point in the first part of the introductory remarks where he lays out the harm principle. I am going to read a section on this just to make sure everyone is on the same page and we don’t have the same copy so I can’t tell you exactly where this is but, “The object of this essay is to assert one very simple principle as entitled to govern absolutely the dealings of society in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of their number is self‐​protection. That the only purpose that power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others.

And that pretty much lays it out but the interesting thing, and John kind of put on this notion of how modern it is and this is an observation by Julian Sanchez, our colleague, a while back when the gay marriage case was happening, which was Julian said that we’re all millions now because both sides had to make a claim based on that gay marriage should be allowed because it’s good for people or gay marriage shouldn’t be allowed because it’s bad for people or gay kids so that the anti‐​gay marriage side were making arguments with these bad scientific studies about how kids growing up. But the interesting thing is before, and you see this in Scalia’s descent on this, before in like tight knit communities you never needed to justify banning something like homosexual marriage because it harms people because just saying it was wrong or “Ooh” was like enough to ban something like that. I mean of course we still ban a lot of things because we thing ooh about that.

John Samples: But this is a natural, I mean a million standard in some sense is natural for a post Christian west right? I mean this is kind of Max Weber and stuff, what do you do after everything is no longer a God filled universe? So religion is in decline as a practical thing and you’ve got to have some other standard for figuring out things. And so in a sense the gay marriage was kind of a holdover from the past because people were against it because it was wrong and because the deity had said so.

Aaron Ross Powell: That wouldn’t fly anymore.

John Samples: Yeah but Mill is at the front end of that period and he does say, I mean I think religion and Christianity does lurks in the background of this essay in a lot of ways.

Matthew Feeney: Yeah he certainly doesn’t shy away from talking about it at all.

Trevor Burrus: He seems incredibly critical, the way I read it.

Matthew Feeney: One of the parts that really stood out to me was that Marcus Aurelius was a good Christian despite his persecution. But it did seem, maybe to go on to the radical point a bit more on gay marriage, he does outline the three components of human liberty and they do sound pretty radical in 1859 when this was published; the first being the freedom of consciousness, the inward domain, but he also the principle of liberty of tastes and pursuits and then also, thirdly, the freedom to unite for your own purposes. And I suppose we might take all that for granted now but that does strike me as a radical point that people don’t pick up on. The actual freedom of tastes and pursuits was something that stood out to me in particular.

Aaron Ross Powell: Yeah I think even more radical and I think one of the areas where I have the hardest time with his argument is not just that these are the liberties that need to be protected but that when we talk about protecting these liberties today we tend to say we’re protecting them, what we mean by that is protect them from the state. So we have a bill of rights that says congress shall make no law basically abridging these things; freedom of religion, freedom of speech or conscience and assembly. But Mill takes it a step further and says it’s not just laws that can abridge these liberties but also basically social pressures.

That just as you can’t pass a law that says people can’t believe this particular set of religious beliefs, you’re also not allowed to shame them, to ostracize them – it’s not entirely clear where the line is there because he says you don’t have to associate with them, you don’t have to praise them. And you can criticize because much of his defense of free speech is if we allow people to speak freely then bad ideas are open to criticism. But saying we can’t use social pressures in addition to laws is incredibly radical in terms of respecting these views.

John Samples: He seems to equate the weight of public opinion with coercion early, but then it becomes, later in the essay, it seems to me it becomes clear what he has in mind. The enemy is custom and that’s what this is, the force of custom and the good guy is individuality. And so custom, public opinion – all of that – constrains and individuality is a good in itself.

Trevor Burrus: Well I do find that this social shaming is coercion kind of thing. It is a little bizarre because of how much he is for criticizing people on his free speech defense which makes it really interesting about why it’s the case that…so if you really criticize someone’s ideas but it doesn’t go as far as shaming. And that’s why I don’t really buy that distinction because with government action you have a pretty clear distinction about what it is that is the problem which is the application of force. And with civil action his description is quite unclear to the point that I think it’s unworkable.

John Samples: To me this was interesting because of the gay marriage case. The gay marriage Supreme Court case is interesting because when it started out and the arguments for twenty or thirty years before that were always about minorities, protecting the rights of minorities. And that’s very million, right? And it was protecting the rights of minorities against custom, religion and public opinion. But by the time you actually got the case it was the opposite, right? In the sense that public opinion had come around to the side of gay marriage and custom, religion whatever was on the other side. They then became a minority; does Mill then opt for protecting them?

And the answer is probably no because of individuality being his…I think there’s a conception of the good life or human nature or of the preferred way of living that is lurking here that’s not. He seems on the one hand to want to be neutral about the ways of living and yet I think ultimately he prefers and says that the development of the society to greatness too requires individuality.

Trevor Burrus: Are you saying that you think that Mill, when the anti‐​gay marriage people were in the minority, that he would want to protect them?

John Samples: He would then but then the question is after the decision, or even before the decision when you had basically what was referred to by some gay marriage advocates as a consensus, would Mill support defying that consensus because that would also be complaining about defying the decision?

Matthew Feeney: So this was the difference between consensus on what ideas count as bad or what ideas count as defeated versus custom because it seems like if custom is a coercive threat, custom is just a kind of set of settled ideas and they may be irrational, customs can be bad, they can be harmful, but it could also be the case their simply a certain set of ideas that has had the opportunity to defend itself over time and has failed repeatedly. And we’re not going to keep giving it the benefit of the doubt, we’re not going to keep giving it the opportunity to defend itself because we’ve got better things to do.
So take an extreme example like holocaust denial, like it feels like you can say we shouldn’t say that’s an idea you can express and each time you express it what we need to do so that we’re not coercing you or morally shaming you is say, “Well, you’ve marshalled evidence, now let me marshal evidence and let’s hash this out.” That the idea is so wrong and has been so wrong and the evidence against it is so strong that at some point it simply is just consensus that it’s wrong and we don’t really need to bother with it anymore. Or we can say these particular sets of ideas are so wrong that continuing to hold them in light of what we know is itself a morally blameworthy act. It’s just I am not entirely sure how we distinguish wholly discredited ideas and the way we ought to treat those from the coercive weight of simply customary…

John Samples: Well I was only going to say that it sort of takes us to the second chapter, not that I want to jump ahead too much but on that point Mill does say that one of the arguments for freedom of conscious expression is that even if an opinion is false it’s worth allowing it because it makes sure that the negative is never just taken as dogma or truth. It’s always worth having people around who will stand up for holocaust denial who do believe that the holocaust happened to strengthen the arguments and always be vigilant for evidence and things like that.

Trevor Burrus: Well he definitely addresses, I’m just looking for the part here, essentially he said about the way that you will build a body of truth and it will become unassailable but it doesn’t make it illegal to talk against that. I think it’s different than custom because I think he’s talking more about ideas in the free speech chapter than custom or just things that are just ways things are done and the hardest thing about changing them is being the first mover to not do it that way. It just persists because it’s been going on so long so if you’re going to suddenly say, “Oh I’m going to walk down the street in this way as opposed to this way.” That’s kind of custom but it’s different than free speech I would say.

Aaron Ross Powell: Well I’m not pushing back on the idea about that we shouldn’t make wholly discredited ideas illegal but that where the line is between social consensus that an idea is so discredited as to be we don’t necessarily have to take it seriously or listen to the proponents of it and the kind of social opprobrium that he objects to. That is seems like it’s almost like it becomes bad if enough people think you’re wrong and tell you you’re wrong and say, “Look I don’t have time for this.” Then that crosses some line that’s, you know, so do we have to always keep giving credit to bad ideas lest we slip into coercion?

John Samples: Those people are going to be individuality, they’re going to be centric individuals and he seems to have a strong like for that. And you know that’s part of the argument actually, the people that seem to be sort of crazy and stuff you want to let talk because they might turn out to be right has all these arguments. I just thing he’s got a problem, I think he’s assuming. This may be a time bound thing, it’s 1840 or 1830 and Christianity is still strong and all of that. And he’s arguing against that kind of custom, that kind of public opinion and he’s arguing for a conception of individuality that we recognize as the artist, the eccentric – all of that stuff that has become familiar to us. He is not there yet but once you are there public opinion has a right; once public opinion is on the side of individuality then those kinds of people maybe don’t have the same status as the previous ones.

Trevor Burrus: I think that if you did think of someone that’s actually an illiberal we would criticize this. Pretty much if you criticize this in most ways, from just purely deontological to utilitarian, it’s such a dis‐​statement of liberalism in the classic sense that you would have to just sort of say, “I am not liberal.” And of course there are people who increasingly say that they aren’t liberals on the grounds that they are against individualism.

I mean they are actually against a tenet that is foundational to liberal thought in many ways. Some feminists say those humanitarians, people like this, some say they are against individualism in the sense of, “No you’re not allowed to trail blaze your own path,” while taking drugs and having sex with who you want in the community is actually the actually the operative element of this which is interesting because if you look at…well maybe his preference for individualism, which John has been saying is sort of and undercut, he really likes people who let their freak flags fly and whatever.

Him particularly, I don’t know about his preferences, speaking about feminism at the time when he was speaking about it was unbelievably individualistic. But the interesting part near the beginning of the introductory which you could use just to criticize his preference for individualism, “The likings and dislikings of society or of some powerful portion of it are thus the main thing which has practically determined the rules laid down for general observance under the penalties of law or opinion.

In general, those who have an advance on society in thought and feeling have left this condition of things unassailed in principle, however they may have come into conflict with it in some of its details.” Basically the idea that the way society is, is based on people’s preferences who are in power and they like this and it’s legal and they don’t like this and it’s illegal or vice versa. But his preference is individualism and it’s not clear that that is the right thing.

Matthew Feeney: Yeah in fact I think the illiberals that Trevor just talked about have their own kind of harm principle. So the holocaust denial, which is illegal in some countries in Europe, is based on a harm argument which is, “This speech hurts people, to do this is an insult and is an attack on particularly the Jewish community and other people that are related communities that were affected by the holocaust.” And that’s something I think liberals always have to fight against is that yes you’re right, this might cause some kind of harm and it’s hurtful but it should be allowed none the less.

Aaron Ross Powell: Yeah I mean he addresses that sort of argument and I think it’s chapter three, which we aren’t planning to talk about today, where he brings up kind of notions of disgust for one. So he’s talking about Muslim prohibitions on eating pork and how that kind of rises to there is this profound disgust at the very thought of people eating pork or witnessing someone eating pork and they see that as effectively a harm that should be prohibited. And he dismisses that as a different sort of thing that’s not.

John Samples: I wanted to raise a question about this, the harm principle, I mean does it make sense? Is it workable at all? Now with this you sort of work in the idea that if I say something about Matthew, about his origins in New Zealand or something, make comments about sheep and so on…

Matthew Feeney: This isn’t hypothetical.

Trevor Burrus: How horrible the all blacks are.

John Samples: That sort of thing. But that’s one thing, I should be allowed to do that. But if I punch Matthew that’s the borderline, right? And that’s really Supreme Court doctrine probably and you’ve got to get really up to the punch or really close to it with this speech. But if the general principle is harm I mean all sorts of things do harm to others, all kinds of speech does harm.

Aaron Ross Powell: I mean to some extend I think the definition of harm can be argued to be conventional. So we end up talking this issue, for listeners who haven’t heard it, one of our earlier episodes with Andrew Cohen on toleration we go fairly deep into the harm principle and the difference between hurt, merely hurting someone which is not something that you can – I think I have these terms backwards – but the difference between just like doing something they don’t like, hurting them in a morally permissible way versus a non‐​permissible way. And there’s a lot of things like we tend to say competitive harms as perfectly accessible. So if I go and smash your business or steal from you or build a wall around your shop so people can’t come in that’s not morally permissible and we can have laws against that. And what I’ve done to you is I have taken away your living, I have reduced the amount of money that you’re earning, that’s my actions. But on the other hand if I start a business right next to yours and undercut you on price and take all of your business and the effect is permissible and you can provide arguments for why those are different but there are cases where it becomes harder and harder to distinguish morally permissible hurt from immorally permissible or impermissible harm.

John Samples: Let me try to introduce a different element of this, one that is relevant for us today. Rob Dryer this weekend said, he was talking about the abortion pill, and he said if this is legal to sell then your pharmacy would sell it to you and you’d buy it, that’s a free exchange. But Dryer’s response to it was that well that means a Christian, meaning a person who is against abortion or has a particular conception of that kind of religious teaching, can’t work as a pharmacist because that would implicate them and if you can’t ban the drug it would force them to be involved in a religiously forbidden act. Well that would do harm to them, they’ve trained all the years to be a pharmacist and all that sort of thing and you’re putting them to a choice between something to a grave moral sin.

Trevor Burrus: Right, it may actually send them to hell and that would be very harmful so yes.

John Samples: Or having them working in the field they’ve been working in. That seems to me to fit the idea and also introduce for us what is religious liberty in this discussion forum.

Aaron Ross Powell: I just want to slip forward a note here real quick before, Matthew looks like he has a response to this, but we’re talking about this and we’re talking about what counts as a harm and what doesn’t and we’re doing it within Mill’s moral context which is utilitarianism. So the listener might be thinking one of these violates rights and one doesn’t or there are deontological constraints that clear this up but those don’t apply here, what applies here is utilitarianism which says the only moral consideration, the only thing that counts in deciding whether an action is moral or not, is the quantity of pleasure or pain or happiness that it creates. And so if it looks like two actions have exactly the same effect on the world, create exactly the same amount of happiness or cause the same amount of pain but Mill is committed to them being different somehow then that creates a problem for Mill even if it’s not a problem in other moral contexts.

Matthew Feeney: Well as so often happens Aaron said what I was thinking, however I will add that the example that you gave Aaron about building a wall around a business, it reminded me about Mill’s discussion of the difference between inciting a riot within a market and writing an article about how corn dealers are ruffians or whoever. And the utilitarian point made me think, because I think when a lot of people today think of utilitarianism they’re thinking of people like Peter Singer or other consequentialists, and it reminded me that Mill – not that he would necessarily particularly care – but this doesn’t help other liberals who care about animal cruelty or anything. The harm principle is harm to humans – other persons – which is one reason I remember when I first read this I say that I found it rather unsatisfying. Although I was a vegetarian at that point so.

Trevor Burrus: Well Mill was also a rule utilitarian.

Matthew Feeney: So I guess you should explain what that means, so follow the rules that have the best consequences.

Trevor Burrus: Yeah as opposed to the actual evaluating…

Aaron Ross Powell: Every action individually.

Trevor Burrus: So this is how you get around the problem of why can’t we torture this one guy, which utilitarians who are action utilitarians have a difficulty with, or at least ostensibly have a problem with because we torture that one guy to free a hundred nuns or a hundred dolphins or whatever. So you would just add up the acts and say okay it’s good but Mill’s point would be that if the rule against torture is broken in such a way then the disutility that results from the breaking of the rule and the fact that people are now worried that they might be the person to get tortured is utilitarian calculus. So the rule, the consistency of the rule, is important for utilitarianism.

John Samples: So following up on that the two ideas seem to be: One is the pharmacists example I was talking about, what do you say about, with the pill, the fetus or whatever, is – I don’t know the technical term – is about a day or twelve hours or something like that, what utilitarian standing does that have? That is one thing; the second thing though is it seems that a lot of this is our other utilitarian philosopher Ronald Coase, right? So you don’t do any harm to the pharmacist if you raise the price of the pharmaceutical enough that you can reimburse them to not practice essentially to the point that they’re indifferent. That is the person who is against abortion but wants to be a pharmacist. And then you go forward from there, through that one indifferent person to others and that’s the end of it.

Trevor Burrus: Yeah Coase is dealing with social cost as an inevitability, living together, I mean Coase wasn’t advocating going up to somebody and then chopping off their arm and giving them like $200,000,000 and going like, “Here you go dude, we’re all even‐​steven now.” I mean whether or not it’s a violation of not just a condition of living together and having different sort of externalities creep over like the train and sparks flying over – that’s different. Now I think that going back to Aaron’s question about how we deal with the harm principle, I mean and back to my point at the beginning about how we’re all millions now, it is interesting that it is initially very satisfying and ultimately incredibly unsatisfying for all the reasons that have been stated here. But you think about the free speech debates that have been happening now, I mean these people are – in like that Yale situation – they are not in a safe space, they are crying about it, they feel oppressed and marginalized. I mean you can say you should not feel that way, you should grow a spine and realize that this stuff doesn’t actually hurt you.

But they believe it actually hurts them and we should take that into account. And so it’s like their own subjective opinion of their own hurt and so this speech is hurting them and then therefore what?

John Samples: And strangely in a way I think this does bring us back to Coase because Coase and Pareto and all those guys are, if you look at social scientists, they don’t buy utilitarianism at all. The reason they don’t is because they don’t measure utility, if there were we could say to the Yale students yes or no, “We’ve got this measure here and you’re hurting really bad,” we could say that. So the Coase and all of that, Pareto and all of that stuff, weighs out of actually doing stuff and policies without a conception of utility.

Matthew Feeney: I wanted to make a quick argument, one that doesn’t necessarily reject million liberalism in order to justify a lot of what we would call the illiberal policies that say people in the United States call for when it comes to freedom of expression and freedom of speech because I think that you can, this isn’t an argument that I would accept, but I think that you could frame the arguments against say racist speech or against the bakers refusing to bake the cake for gay couples or against triggering expressions on campus within Mill’s little exception for barbarism because he says, he’s very clear…

Trevor Burrus: Who the barbarians are.

Aaron Ross Powell: Yeah, he says despotism is a legitimate mode of government when dealing with barbarians, basically people who are…

Trevor Burrus: Like racists are barbarians.

Aaron Ross Powell: Yeah so a lot of the framing of these arguments are these ideas are basically barbaric. That there is something backwards, retrograde or inhuman about these kinds of expressions about the hatred of gays or hatred of women or what gets called hatred of women, about racism. That these are the kinds of things that only barbaric people would accept and so we are therefore justified in stamping them out, that this isn’t about freedom of expression.

Trevor Burrus: Now that’s super interesting because that argument, as you said you don’t accept it and it’s bad, but it’s interesting why it’s bad and I think that some people who accept some version of that argument but don’t use the word barbarians are just not commonly used anyway. And you do get this idea from like the anti‐​free speech people that like when they don’t let Dinesh De Sousa speak on campus that his idea should be heard would be like, “No, Nazis shouldn’t be heard and barbarians only speak falsehood and hate and should not be heard, they are barbaric.” I think that’s interesting. Of course what that does is it ends up being this, because by making this concession that despotism is the only form of government for barbarians, it turns what he’s trying to do – an argument for liberalism – into just a definition of if you are already liberal you can live in a liberal society and if you aren’t liberal you can’t live in a liberal society. And so the entire endeavor of riding on liberty is like kind of worthless in some basic sense. It’s only a place where liberals who agree to leave people alone and not have barbaric opinions can live and if not we’re going to rule over you like despots.

Matthew Feeney: I mean there is a sense in which I think, we spoke in the beginning about how modern this text sounds and there was a section in the chapter on discussion and thought that I thought applied so well to these Yale campus controversies because Mill throughout the books seems to be a fan of Socrates – who we have discussed on this podcast before – who was a big fan of this negative way of arguing, that the way to gain knowledge is by constantly questioning and arguing.
And I thought that Mill might has well have been writing about today’s college controversies when he wrote, “A person who derives all his instruction from teachers or books, even if he escapes the besetting temptation of contenting himself with cram, is under no compulsion to hear both sides. Accordingly it is far from a frequent accomplishment, even among thinkers, to know both sides. And the weakest part of what everybody says in defense of his opinion is what he intends as a reply to his antagonist. It is the fashion of the present time to disparage negative logic, that which points out weaknesses in theory or errors in practice without establishing positive truths. Such negative criticism would indeed be poor enough as an ultimate result, but as a means of attaining any positive knowledge or conviction worthy of the name it cannot be valued too highly. And until people are again systematically trained, there are few great thinkers and low average of intellect in any but a mathematical and physical departments or speculation.”

And I think that’s a, possibly because of where I work I hear about these college campus debates all the time, but I feel that if we are not fans of racism and sexism the best way to not only defeat racists and sexists but also to sharpen your own arguments is to debate these people, is to make sure that you push your own arguments to the limits as well while doing that.

Aaron Ross Powell: Well so that gives us an opportunity as well, we’ll move into chapter two, this full thwarted defense of freedom of speech, of thought and discussion.

John Samples: I just want to return to the, I mean isn’t there something about Mill? And not just because of the prejudices of our time but the distinction between barbarians and non‐​barbarians, which you have just indicated one way could be used to unleash internal despotism, isn’t there something problematic about that in general? I mean I think the biggest problem in our time would be to end up describing parts of, I mean there is certainly misuse of the idea, everyone is going to turn out to be a barbarian.

Trevor Burrus: When the chips are down yeah.

John Samples: But in general those kinds of either you are in or you are out of general civilization is…

Trevor Burrus: Is a very nineteenth century concept.

John Samples: Yeah but we lived through the twentieth century too right?

Trevor Burrus: Yeah but sort of, but the use of the term like savages in general conversation, they all were pretty clear in their minds that…I think that what he means by barbarians I think we probably agree are not so much illiberal racists but people who beat each other on the head and cause extreme violence to each other constantly and don’t resolve their disputes in a civilized manner kind of situation.

John Samples: Maybe given the time that he was living in, and I perhaps had a more depressing interpretation of it and I could be wrong, but I thought he might have meant people who lived in some of the British colonies.

Trevor Burrus: I think he means Indians.

John Samples: Indians and some of the people on African colonies are not capable of liberalism.

Trevor Burrus: He also says it, he also says – and I think we have to take these together – is basically this philosophy is basically not for children or barbarians and I think that you should take those things together.

Matthew Feeney: He does seem to view despotism as a means to an end, saying despotism is a legitimate form of government in dealing with barbarians provided the end be their improvement and the means justified by actually affecting that end.

John Samples: I mean it’s definitely the case that his defense is that he believes that people who are in a state of barbarism now might become better. This isn’t like a Greek conception or a Roman conception where these are just people who are just screwed from the start. I think he does believes that’s civilization improving. I would argue that ultimately Mill perhaps is deeply not liberal because he’s committed to an archeological conception of both government and history that focuses on progress and improvement. Maybe it’s done by liberty but maybe not.

Trevor Burrus: You mean…can you clarify that? So he’s committed to a wig kind of view of history or?

John Samples: No it’s later in there, he talks about progress and he says the best way to have progress is individual liberty that I am talking about here and society gets better and everything. But it may not work and there’s another way, he equates progress with the improvement of the individual in society, but there’s another way and he suggests there’s another way and that it can lead to mistakes and so on but maybe not. I would argue, apart from Mill, is that once you have this goal of society being progress you’ve opened the door for improvement of people. You’ve opened the door to what you’re talking about, that is you may not call them barbarians but they’re not quite where they need to be and you’re going to make them where they need to be if liberty doesn’t do it, if they don’t engage in reason, debate and so on. If for example their ignorant voters or something like that.

Aaron Ross Powell: So we discussed a fair amount of this stuff that comes up in chapter two but let’s formally move on to that. And this is his defense specifically of freedom of thought and discussion. And so Mill kind of makes…he says when we’re talking about arguments for allowing people to hold whatever opinions they want or to express whatever opinions they want the opinion that is being expressed can be one of three things ultimately; it can be true, it might be that the opinion being expressed is true, it might be that it’s false and it might be that – and he says that this is most of the time – it’s somewhere in between, it’s got some stuff that’s true and some stuff that’s not.

And so then he moves on to consider each of these and Mill, one of the really wonderful things about this book just from the structure of the argument perspective and from Mill’s ability as a thinker and writer is his capacity to anticipate counter arguments and then to – and this is a skill that many people, too many people, lack and we would all do better to develop – is not only to anticipate those counter arguments but then to express them in terms often stronger than the person who believes them would actually be capable of. He presents the strongest case against his before then moving on to show why he’s right and why the counter argument doesn’t hold up. He’s remarkably good at this and as you read it one of the really delightful things is how often I would find myself saying, “Well but here, wait a second, here’s an objection.” And then a couple of sentences or a couple of paragraphs or a couple of pages later Mill raises exactly that objection but sharper and more focused than it was in my mind at the time and deals with it.

Trevor Burrus: Yeah I thought the same thing but the one that I didn’t see him address really when it came to – and I guess this is like the second or third time I’ve brought this up – but when it came to religious doctrine which is what he spends a lot of time talking about here. That if these people are going to hell, I mean if you’re a puritan and if they’re correct, I mean let’s say plantation puritans who are concerned about whether someone hears something that will pollute them and make them believe something that will send them to hell, I mean this is a huge harm that you can totally understand being against. None of this stuff works to addressing that point, he has really interesting arguments but I don’t think anything addresses that specific point.

Aaron Ross Powell: I wrote a paper in law school on precisely this problem.

Trevor Burrus: Yeah I remember that, that was a good one.

Aaron Ross Powell: Supreme Court jurisprudence is pretty clear that the court says, “If you come to us with something that is based on a religious claim, we the court – and therefore the United States – will not weigh in on the truth or falsehood of your religious beliefs. We won’t tell you that you’re wrong in thinking this particular thing or it’s not true but if you believe genuinely that obeying this law would mean that you burn in hell for eternity…

Trevor Burrus: Or I’m gonna whip my child all the time because that’s the only way to make her experience the salvation of the Lord….

Aaron Ross Powell: If your belief hinges on, “In the afterlife I will either enormous pleasure or enormous pain and this law will decided that.” Then saying, no, you have to follow it, is saying if the pleasure or pain is great enough, is the same thing as basically dismissing it, as saying your belief isn’t actually true because if it were true that like not being able to hand out these pamphlets is going to send you to hell and you will burn for eternity then it would be absolutely monstrous of us to prevent you from handing out those pamphlets. And so you can just qualify it by saying, “Look we’re not concerned about this, the harm principle doesn’t apply to heaven and hell, it only applies to while you’re alive.” But even that seems to be again dismissing these religious beliefs.

John Samples: It does seem to have an element of what later became like the late Rawls, I think, which is that you really don’t allow into the public sphere non‐​public arguments and religion, being things that aren’t like language or data or whatever, things that are evident to others and others can understand, you can’t have these private experiences – they are ruled out of order basically.

Trevor Burrus: Or if you’re an incredibly divergent person whose conception of the good is really, really horrible and awful and you’re not going to be allowed into public reason. I think we should go back, when we were talking about the free speech chapter Aaron kind of mentioned these but at the end of chapter two he goes over the three things, he says, “We have now recognized a necessity to the mental well‐​being of mankind on which all their other well‐​being depends; freedom of opinion and freedom of the expression of opinion on four distinct grounds which we’ll now briefly recapitulate: First, if any opinion is compelled to silence that opinion may, for ought we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may and very commonly does contain a portion of truth and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collection of adverse opinions that the remainder of the truth has a chance of being supplied. And then thirdly, even if the received opinion be not only true but the whole truth, unless it has suffered to be and actually is vigorously and earnestly contested, it will by most of those who receive it be held in a manner of prejudice with little comprehension or feeling of its rational grounds.” That one is my favorite one, the third one, the idea that even if you are correct if you don’t let people challenge you you’re going to be really bad at being correct. It reminds me of state churches in Europe which are just boring and…

John Samples: The other aspect to this though that I think shows maybe something that Mill just assuming, that is how we think about this thing, this quote about he who only knows his own argument only knows part of it. I was thinking about whom are people or a group of people that I have run into who not only know their own arguments but everyone else perfectly. The answer is the only people I’ve ever heard, that group, were lobbyists. If you get to know people who lobby the government what you find is they know each other’s arguments, they know what the other person is going to say – that’s part of the job right? So the argument develops in a very million way, when you say this, I’m going to say this. So when I’ve got face time with member I am going to say this. And so in a sense the million ideal is the people that are about thirty feet or a couple of blocks that way on K Street because they actually do know not only their own brief but everything the other side says. Now what that suggests is, without saying anything bad about lobbyists, is that there’s probably an additional assumption which is that you’re not doing it professionally as a job, you’re also lob for you own personal, you want to have the right thing – the truth. You want to know the truth and the best way to know the truth is to know all the arguments one way or another so you need something additional. Who know? Lobbyists may be like that but they may also be doing it professionally. So there’s an additional assumption that he doesn’t articulate there. I just think there’s an enlightenment ideal of human nature of the good, the good life that underlies all this which is fine but it’s not neutral among…

Aaron Ross Powell: Yeah that was my reaction to what Trevor said was if ultimately for a lot of these truths or falsehoods that we’re dealing with they’re going to believe in them one way or another is going to have an impact on how you live your life, the choices that you make and it’s not at all clear except for some of us who are really into all this intellectual stuff that having a whole bunch of good reasons for believing something and so acting upon that belief and having things happen in your life because you acted upon that belief it’s not entirely clear how that’s all that different from having bad reasons for believing this thing and still acting the same way and so having all of the same effects in your life except for, as you said, this distaste for having bad reasons for believing things and that somehow moral purity contributes to a valuable life. But that does seem, I’m going to say it’s idiosyncratic, because most people would say, “Yeah it’s better to have good reasons than bad reasons for your beliefs,” but it seems dedicated to a certain way of living that I happen to like and I think the rest of you at this table happen to like. But our tastes are not universal.

Trevor Burrus: Actually we’re really weird.

Matthew Feeney: We are weird, I mean…

Trevor Burrus: By we, I mean the western, enlightenment liberal people including us. But I mean the whole group of western, enlightened liberal people are kind of weird.

Matthew Feeney: Right. I think Aaron’s right, if there was a magic button and if I pressed it everyone in the world would become a libertarian because they thought they would each get a free pony. And then I thought like I wouldn’t press the button because I want people to be persuaded, I want people to come about it in their own way, right?

Aaron Ross Powell: I would push that button.

Trevor Burrus: I would push the free pony button.

Aaron Ross Powell: Or they would come to learn the true value of really having he pony as they experienced more.

Trevor Burrus: Well the interesting question I think around all these too is, and this goes back to when I was talking about individuality and Mill’s preference for individuality and people just certainly don’t have that preference, does Mill let, with this enlightenment, individualistic, liberal project he’s working on does he let the Amish exist in his world?

John Samples: That was my point about progress before, if you thought of individuality as the definition and improvement is the movement towards individuality and also it seems that people are actually happier in a world which there’s lots of diversity of life, ways of living and all of that. It seems to be far from clear.

Matthew Feeney: A similar point is made by people who are very anti‐​home school for example, so if you think of people who want to home school their children because they don’t believe in evolution and they believe in literal creationism. So if you look at Mill, well there’s a chance that this opinion might be true, maybe the bible is true. Maybe there’s some truth to it. But then the third, which is what Trevor highlighted earlier is, you know well an evolutionist like me – and we might not like the fact that children are taught nonsense at home or whatever but at least it means that I will be able to sharpen my skills when I ever happen to meet them and discuss evolution. And the point is I don’t need these people, it’s a strange argument to me and of course it most probably what Mill was thinking of, but it is similar if I understand your Amish point correctly which is I don’t know if the third option is applicable.

Trevor Burrus: Well that’s part of my point but my point is that the Amish are not liberal. I mean you could say that the right of entry, which is interestingly voluntary to some degree except for Mill under social coercion and they are pretty coercive, but do they violate the harm principle precepts and things like that? We let them exist as an enclave within liberalism.

Matthew Feeney: Well his point earlier that this doesn’t apply to children so…

Trevor Burrus: Are they barbarians?

Matthew Feeney: Well I don’t know. So once you’re Amish and you turn eighteen I guess you are free to do whatever and Amish parents can teach their Amish kids whatever they want.

Aaron Ross Powell: Another potential empirical objection here to the idea that what we need is to vigorously defend our ideas in public and hear the ideas of others and critique each other. So this is the…deliberative democracy people make the same argument that the way you improve democracy is by having citizens hash out their political differences in council meetings and such and that the more we listened to each other and the more we directly engage with each other the better off we’d be, the more tolerant we’d become. But the opposing literature to this says, “No, there’s pretty good evidence that it has precisely the opposite effect,” that when you get people of differing opinions together and have them argue with each other it makes them more extreme in their views, it makes them more resentful of the other side, it angers them and this empirical evidence may be mistaken it can’t be…

Trevor Burrus: It’s not clear the other way.

Aaron Ross Powell: It’s not clear the other way and if that’s true then, especially from a utilitarian standpoint, it may be the case that going out and critically engaging with all of these people as opposed to either just ignoring them or excluding the bad ideas and the ones we feel more comfortable thinking are bad may make us all better off.

Trevor Burrus: The difficulty of his defense of free speech is that it could feasibly be tested out as a utilitarian, I mean as you said you could be like, “No you’re actually wrong, this is not what happened.” You know when people are allowed to speak on these issues they don’t refine their ideas, they get worse at them, they don’t listen to truth, falsehood is brought up – none of this stuff actually happened so we should eliminate free speech, which is interesting because he does not have a deontological, “you should be able to speak because it helps yourself, you have a right to do it regardless of the consequences whatsoever.”

John Samples: I think the utilitarian problem can be stated otherwise too. This morning, again we bring this back up, while Tony Blair’s speech on Iraq was going on, something that people have strong feelings about still in the United Kingdom and here. And I sent to Aaron and Matthew a comment that was made during the speech, which this being a family podcast we won’t repeat, but it was about something that should be…

Trevor Burrus: Families are sitting around right now listening to us, that is what I’ve always pictured.

John Samples: I feel that someone out there has their children listening, I certainly hope so. But this was something about what should be done to Mr. Blair. Now what I would say is it’s clear to me, and this applies to a large percentage of the comments on news articles and so on, the person who did this did this for a reason. They liked it, it was easy to do and it was pleasurable to express themselves in this way. And yet the rest of us got nothing out of it except a slight diminishing of my belief in freedom of speech.

Matthew Feeney: I got an email.

John Samples: You got an email that was pessimistic of course but again that’s my point, I mean I think Mill is saying throughout this essay that if you let people be free in general and just put a harm limit on it everything will turn out better for everybody. But it seems to me that there’s just lots of useless speech, that doesn’t mean we have to get rid of it but it doesn’t pass a utilitarian test in itself.

Trevor Burrus: Well it could pass the rule utilitarian test which is that the rule of free speech means maybe if you could figure out that that internet commenter like “JewsRBad7483” on a YouTube comment, we’re going to have exception for him of free speech rule. He said that having that rule broken is going to be problematic on utilitarian grounds. But again that’s not even clear.

John Samples: Yeah I’m not sure that a rule that said we don’t have comments on news articles and blah blah blah.

Trevor Burrus: Except for KenM.

Aaron Ross Powell: I mean he does say, like I think his response to that would simply be we don’t know. And the kinds of beliefs that, if we were to go back a thousand years and say ask those people, which are the things that fall into the category of useless speech and therefore we shouldn’t extend these freedoms to? A lot of them are probably going be what we would still consider useless speech but there would be some diamonds there, there would be some…

Trevor Burrus: An internet commenter in 1000 AD who thinks that the sun actually is at the center of the solar system, that crazy guy.

John Samples: Or John Roberts in the Westboro Baptist church.

Aaron Ross Powell: Or basically everything Socrates said. But we can’t know that our judgment is not infallible and so we, especially because of utilitarianism, and so we’re judging overall happiness. So like yes you may be made slightly less happy because you had to see this vile tweet and Matthew and I were made slightly less happy because you felt the need to forward it to us.

John Samples: I thought you would enjoy it.

Aaron Ross Powell: That doesn’t matter because the utility we gained from the occasional truths that get expressed and weren’t suppressed vastly outweighs that.

John Samples: I think that Westboro is a harder case actually, it got to the court because it was a harder case. I mean what was being said was protected speech but it was being said at the funerals of a parent of a dead soldier and you hear these people yelling these things. That seems to me to be pushing the million principles pretty hard.

Matthew Feeney: As does, not Westboro Baptist church, but I remember a few years ago there was a pastor in Florida who was intent on burning, I think, a hundred Qur’ans on the front yard. And I was quite happy that I live in a country where the worst thing that could happen was that the Secretary of State called him and said please don’t. He was not capable of banning it knowing full well that had he carried this out that there would almost certainly have been riots across the western world and innocent people could have been hurt or killed. But the rule, if the rule is you can speak and generally you can speak unless you’re under certain circumstances, I think I would be kind of satisfied under some sort of rule utilitarianism.

Aaron Ross Powell: Well we’re out of time so I think that’s going to have to conclude our discussions of chapters 1 and 2. On a future episode though we will discuss the rest of John Stewart Mill’s On Liberty. Thank you for listening, if you enjoyed today’s show please take a moment to rate us on iTunes. Free Thoughts is produced by Evan Banks and Mark McDaniel, to learn more find us on the web at www​.lib​er​tar​i​an​ism​.org.