Freedom of expression is looking less and less like a settled issue. Challenges to it have lately arisen from the right, from the left, from Muslim perspectives, and even in the name of protecting children online. These challenges seem to share an underlying concern, namely that we must balance free expression against the psychic hurt that some expressions will provoke. Often these critiques are couched in language that draws on, or appears to draw on, the law and economics movement. Yet the cost‐benefit analyses advanced to support restrictions on expression are incomplete, subjective, and self‐contradictory.
Several examples help to illustrate this point, including flag‐desecration laws, hate‐speech laws in the United Kingdom and Canada, U.S. college and university speech codes, the Cairo Declaration on Human Rights in Islam, and the Megan Meier Cyberbullying Prevention Act, currently before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. Although seemingly unrelated, these measures rely on a common assumption, namely that governments should provide emotional well‐being to their citizens, even at the expense of free expression. This assumption discounts the emotional well‐being of other citizens, neglects countervailing social considerations, and hands arbitrary power to governments.
The result is not more happiness, but a race to the bottom, in which aggrieved groups compete endlessly with one another for a slice of government power. Philosopher Robert Nozick once observed that utilitarianism is hard‐pressed to banish what he termed utility monsters—that is, individuals who take inordinate satisfaction from acts that displease others. Arguing about who hurt whose feelings worse, and about who needs more soothing than whom, seems designed to discover—or create—utility monsters. We must not allow this to happen.
Instead, liberal governments have traditionally relied on a particular bargain, in which freedom of expression is maintained for all, and in which emotional satisfaction is a private pursuit, not a public guarantee. This bargain can extend equally to all people, and it forms the basis for an enduring and diverse society, one in which differences may be aired without fear of reprisal. Although world cultures increasingly mix with one another, and although our powers of expression are greater than ever before, these are not sound reasons to abandon the liberal bargain. Restrictions on free expression do not make societies happier or more tolerant, but instead make them more fractious and censorious.