Law 194 Final

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Liberty-

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the ability to do what one wishes without external impediments imposed by other people (including the government). Some limitations are necessary.

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Liberty as a political or legal concept

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is characterized as the ability to do what one wishes without illegitimate impediments imposed by other people (including the government)\

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Mills primary goal

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is to answer the question of how do we determine legitimate from illegitimate interferences with liberty?

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“Tyranny of majority”-

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This is the danger posed when majorities can through law or social pressure enforce their own wills upon and this oppress minorities who do not share the views of the majority about what should be believed or how life should be lived.

Countered by: the harm principle

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The harm principal-

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the only purpose for which power can rightfully be exercised over any member of a civilized community is to prevent harm to others. Although sometimes paternalism (coercing people for their own good- ex children and elderly) and coercing people to do what proper social order requires- (ex national defense) for the most part our initial thought should always be against it. This principal is by no means simple.

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How is harm justified?-

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if mill really wants to rule out harm as simply an offense he probably would claim that a free society should never prohibit a person from engaging in conduct simply because others, even the majority, find this conduct offensive.

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Sex in public-

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Although the law against public fortification is in a way compromising our status as a free society, how serious an interference with ones sexuality is it to keep sex in private. Some reasonable people might disagree however; quoting the harm principal is not itself enough to convince all rational people.

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Mill on free speech-

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he said that an environment of free speech and open discussion in the long run leads to truth and truth in the long run leads to the general welfare of mankind (greatest good for greatest number). Consequential utilitarian argument, but does not limit the idea of good to pleasure or happiness but rather to the interests of people as members of a progressive species (not mills words), Often referred to as the “marketplace of ideas” defense of free speech. Totally free competition among ideas will according to mill produce the utilitarian benefit of truth.

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3 possibilities for any belief:

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1. It is true-
2. It is false-.
3. It is a mixture of true and false-

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If a possibility is true

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if it is true, and society suppresses it, it loses the benefit from truth

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It is false-

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if it is false, then it would seem to have no benefit and thus society will be strongly tempted to suppress it. Mill says this would be a mistake because history teaches us that even beliefs in which at a certain time people have supreme confidence are true (ex the earth is flat) are often discovered to be false and it was the open statement of beliefs earlier believed to be false that lead to this valuable correction. Also, beliefs once believed to be false, (ex the earth is an oblate spheroid) are later discovered to be true. Finally, even false beliefs have value in making us question and defend our true beliefs and keep them from falling into mere lifeless dogmas.

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Some problems with Mill’s claims about freedom of thought and speech:

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1. The idea that society will in the long run benefit from the kind of truth discovery that results from open discussion of ideas is an empirical factual claim- a claim that must be evaluated by empirical evidence that will be hard if not impossible to come by and will always be far less than certain.

2. Mills theory seems to apply best to cognitive speech (speech that aims at cognitive discovery). Much speech is not cognitive (ex political speech, sexual speech, artistic speech). If any of these are worthy of protection against suppression then marketplace of ideas argument does not seem the best way to defend them.

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Mill believes it is ok to suppress some speech:

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1. Lies: particularly lies that defame and thus harm another person. People who speak harmful lies are not engaged in truth discovery or contributing to the marketplace of ideas.

2. Speech that poses and immediate threat to incite violence: for example you cannot shout fire! In a crowded theater and cause a panic although this is not mills example.

3. The right to speak one’s mind in a bad manner: For example if you want to tell someone that Jesus loves them, you have the right to hand them a bible or a pamphlet but not the right to scream Jesus loves you into their ear with a bullhorn or paint Jesus loves you on the front of their house.

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Four ways that free speech is considered a protected right:

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1. Free discussion leads to truth, which in the long run leads to the greatest good for the greatest number.
2. Leads to healthy functioning of a democratic government
3. Speech most worthy of protection is speech that is conductive to people living meaningful and good lives. Such a theory might place limits on pornographic expression.
4. By limiting free speech it is a failure to respect the autonomy and dignity of speakers and listeners denying them the right of moral independence.

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Texas v. Johnson

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This case is a good example of an American free speech constitutional case. A man named Johnson burned a U.S flag under the assumption that the republican convention was going to re-nominate Reagan ended up to be true. Johnson was convicted of violating a Texas law that made it a crime to desecrate a US flag. The Texas court of appeals voided the conviction holding the Texas statute to be unconstitutional. Texas appealed to the US Supreme Court. The US Supreme Court affirmed the Appeals court decision and declared the statute unconstitutional.

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Justice Brennan, questions to be answered:

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1. Was Johnson’s behavior, since it did not involve actual speech, expressive of a message?

The answer here was yes since it was an attempt to make a political protest. Since it was expressive the next question to be answered was…

2. Was it sufficiently like the earlier O’ Brien case that the same test applied in that case could be applied in the present case?

The answer was no. In the O’ Brien case he burned a draft card which was required by law to show eligibility for the war. This was a completely different case in Johnson because the Texas law against flag burning was punishable only if the act was an act of desecration or an act showing disrespect and not neutral therefore its very purpose was to punish the act of certain views.

3. Does this make the expression absolutely protected?

No it just means that the government must be able to justify the punishment in terms of government interests or values that are not just important but overwhelmingly important. (ex: national defense, protecting public security, and protecting public health

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Could Texas make such a case?

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Justice Brennan considered the two justifications that the state of Texas offered in defense of its statute: The first was that it was necessary to protect public safety since such an act as flag burning could so inflame the passions of observers that they would be incited to riot or other forms of violence. The second was that it was necessary to protect the flag as a nearly sacred symbol of American’s nationhood and national unity of basic values.

Brennan rejected these both. The first almost immediately because eh said no one acted violently or threatened such action as they watched the event occur- some were just offended. The second he rejected not because he didn’t agree with it but because just because the majority of society finds the idea offensive it cannot be prohibited.

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Individuality-

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the freedom to live one’s life as one wishes as long as no harm comes to others. Mill believes that human beings are naturally creatures who want to fit in rather than stand out and are thus drawn to sheep like conformity.

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4 reasons to support Mill’s claim that individuality is a good thing:

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1. Individuality is an element of well being.

He takes a more controversial stand and says that human beings should think of themselves as works of art in the making and strive to become the richest examples of humanity that is within their power. They are like trees (not machines) and just as each kind of tree requires a supportive environment to flourish, so do humans need nurturing to be allowed to fulfill their various potentials.

2. There is some social value in observing others try out various life styles since they provide for us what mill calls “experiments in living”.

Drug use for example should be viewed as a way not to live and that our customs should discourage rather than encourage such drug use.

3. We all benefit from genius- in science and the arts and genius can only flourish in an environment of freedom.

4. Each person benefits from personal choice and the wider such choice the better.

However, is this claim true? People argue that too much freedom and human life begins to lack depth. Too little freedom, and people feel repressed and come to long for freedom. Every benefit comes with a cost or a downside. If there is indeed such tension in the realm of freedom then Mills cheerleading for choice may ignore certain complexities.

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Minimal Scrutiny-

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it is ok to encumber liberty x if it serves a rational purpose. This test imposes upon the government a burden that is easy to bear- easy to show that the interference with liberty serves some reasonable purpose. This is a default position.

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Strict Scrutiny-

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it is ok to encumber liberty x only if the encumbrance serves a compelling state interest (example: national security, public health, public order) and is no more restrictive than necessary to adequately serve that interest. This test imposes and extremely heavy burden on the state, a burden it is very hard for the state to bear. In most cases a lawyer will try to get test 2 rather than test 1 because in most cases in test 2 the state or government will probably lose. Usually triggered if x is a fundamental liberty or right.

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How does the court determine if a liberty is fundamental?

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1. The liberty or right is fundamental if it is actually stated as a liberty or right in the Bill of Rights.
2. The right or liberty has been established by a long line of Supreme Court decisions.
3. A 9th amendment argument. This says that people have rights other than those that have actually been enumerated in the bill of rights but it does not say what these are. In order to be recognized as a fundamental right via the 9th amendment one of the following must be satisfied:
The right is implicit in the concept of ordered liberty. If the right is not recognized then the concept of constitutional democracy could not operate in a healthy way.
The right is deeply imbedded in the nation’s history and traditions.

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Prima facie obligation:

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it is my obligation or duty to do x unless my not doing x is supported by even more important moral considerations not a personal desire or convenience. So for example my promise that I will meet you for an important conversation can be defeated by my for example need to save a life that I encounter on my way to our meeting. However it would not be ok to miss the meeting because you find it inconvenient

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Absolute obligation:

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it is my obligation or duty to do x and this obligation cannot be defeated even by a more important moral consideration since there are no more important moral considerations. Some say that the obligation to not torture an innocent person- a small child for example is absolute in a sense. Others say only duties to god (if there is a god) are absolute in a sense.

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Civil disobedience:

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the principled non violent violation of unjust laws. This occurs because the person believes the law to be unjust.

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Reasons to be skeptical of morality (ethics):

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1. We are all selfish.

This has been found to be not so true. Sometimes we are motivated by selfishness, but other times we are motivated by other things: compassion, malice, spite..ect.

2. Cultural Relativism and Individual Subjectivism.



3. Morality as Emotional.

Moral claims express emotions- strong emotions of approval when one calls something good and strong emotions of disapproval when someone calls something bad or evil.

4. Without God All Things Are Permitted.

Will the decline in the belief of god lead to a decline in morality-and render increasing implausible the claim that morality could be objective?

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Cultural Relativism and Individual Subjectivism.

(reasons to be skeptical of morality)

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For example one culture may kill adults at a reasonable early age and another culture might care for them into great age, but each culture may share the same moral principal of Do what is best for the elderly. The first culture may hold the belief that people live immortally in the state in which they die and so therefore it would be good to die in the prime of life. The second culture may have a different or equally improvable view about immortality or no view about immortality at all.

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What is a moral value?

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1. Virtue or personal excellence: Traits of character that make a person who possesses them more admirable-a more perfect instance of being human than a person who lames them.

2. Bring about future good consequences: All rational decent people care about promoting such good future consequences as the general welfare.

3. Secure justice, that is respect the rights possessed by human beings because they have the dignity that comes from being rational autonomous beings:

4. The claims of religion:

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Antigone

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Involves civil disobedience since antigone openly and violates a law she regards as unjust and willingly accepts her punishment. However it is much more about a deeper issue the fundamental and dangerous failure of character (lack of excellence or virtue) possessed by both antigone and creon. The play involves a conflict between two values of great importance: family and state or community or polis and its laws. Antigone is able to see only the importance of the former, creaon the latter and thus both are in effect stubborn fanatics. They won’t listen to anybody who disagrees with them and can see no merit at all in the position of the other. The Chorus sees that a viable society must find a place for both views. This is vital to personal and social flourishing and the Chorus warns both Antigone and Creon of this. Failing to see human limits including the limits of one’s own moral vision is the kind of pride that is in the eyes of ancient Greeks the gravest of human shortcomings. Neither character (except creaon when it’s too late engages in rational deliberation that involves considering viewpoints not of one’s own and each is destroyed by their own fanaticism. Thus it is both Antigone and Creon’s tragedy, Creon being perhaps the greater tragedy since as leader of polis his destruction not only harms him but the community as a whole.