Freedom of expression is looking less and lesslike a settled issue. Challenges to it have latelyarisen from the right, from the left, from Muslimperspectives, and even in the name of protectingchildren online. These challenges seem to share anunderlying concern, namely that we must balancefree expression against the psychic hurt that someexpressions will provoke. Often these critiques are couched in language that draws on, or appears to draw on, the law and economics movement. Yetthe cost-benefit analyses advanced to supportrestrictions on expression are incomplete, subjective,and self-contradictory.
Several examples help to illustrate this point,including flag-desecration laws, hate-speech laws inthe United Kingdom and Canada, U.S. college anduniversity speech codes, the Cairo Declaration onHuman Rights in Islam, and the Megan MeierCyberbullying Prevention Act, currently before theHouse Judiciary Subcommittee on Crime,Terrorism, and Homeland Security. Although seeminglyunrelated, these measures rely on a commonassumption, namely that governments should provideemotional well-being to their citizens, even atthe expense of free expression. This assumption discountsthe emotional well-being of other citizens,neglects countervailing social considerations, andhands arbitrary power to governments.
The result is not more happiness, but a race tothe bottom, in which aggrieved groups competeendlessly with one another for a slice of governmentpower. Philosopher Robert Nozick once observedthat utilitarianism is hard-pressed to banish what hetermed utility monsters—that is, individuals who takeinordinate 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 traditionallyrelied on a particular bargain, in which freedom ofexpression is maintained for all, and in whichemotional satisfaction is a private pursuit, not apublic guarantee. This bargain can extend equallyto all people, and it forms the basis for an enduringand diverse society, one in which differencesmay be aired without fear of reprisal. Althoughworld cultures increasingly mix with one another,and although our powers of expression are greaterthan ever before, these are not sound reasons toabandon the liberal bargain. Restrictions on freeexpression do not make societies happier or moretolerant, but instead make them more fractiousand censorious.