Chauvin on Understanding Free Speech Values at the Supreme Court

Noah Chauvin, University of Oklahoma College of Law, is publishing Understanding Free Speech Values at the Supreme Court in volume 78 of Rutgers Univ. L. Rev. Commentaries (forthcoming 2025). Here is the abstract.

This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court's free speech jurisprudence, and that through the power of precedent, we have come to have a "Millian" First Amendment. As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court's free speech jurisprudence is "Millian," because that could mean many different things. Understanding with greater precision what motivates the justices in free speech cases is crucial for attorneys, advocates, and scholars.

Download the review from SSRN at the link.

Leiter on Justifying Academic Freedom : Revisiting Mill and Marcuse @BrianLeiter

Brian Leiter, University of Chicago Law School, has published Justifying Academic Freedom: Mill and Marcuse Revisited. Here is the abstract.

I argue that the core of genuinely academic freedom ought to be freedom in research and teaching, subject to disciplinary standards of expertise. I discuss the law in the United States, Germany, and England, and express doubts about the American view that distinctively academic freedom ought to encompass "extramural" speech on matters of public importance (speakers should be protected from employment repercussions for such speech, but not because of their freedom qua academics). I treat freedom of academic expression as a subset of general freedom of expression, focusing on the Millian argument that freedom of expression maximizes discovery of the truth, one regularly invoked by defenders of academic freedom. Marcuse argued against Mill (in 1965) that "indiscriminate" toleration of expression would not maximize discovery of the truth. I show that Marcuse agreed with Mill that free expression is only truth- and utility-maximizing if certain background conditions obtain: thus Mill argues that the British colony in India would be better off with "benevolent despotism" than Millian liberty of expression, given that its inhabitants purportedly lacked the maturity and education requisite for expression to be utility-maximizing. Marcuse agrees with Mill that the background conditions are essential, but has an empirical disagreement with him about what those are and when they obtain: Mill finds them wanting in colonial India, Marcuse finds them wanting in capitalist America. Perhaps surprisingly, Marcuse believes that "indiscriminate" toleration of expression should be the norm governing academic discussions, despite his doubts about the utility-maximizing value of free expression in capitalist America. Why think that? Here is a reason: where disciplinary standards of expertise govern debate, the discovery of truth really is more likely, but only under conditions of "indiscriminate" freedom of argument, i.e., academic freedom. This freedom is not truly "indiscriminate": its boundaries are set by disciplinary competence, which raises an additional question I try to address. In sum, the libertarians (Mill and Popper) and the Marxists (Marcuse) can agree that academic freedom is justified, at least when universities are genuine sites of scientific expertise and open debate.

Download the article from SSRN at the link.

Mill and Porn

Clare McGlynn, Durham Law School, and Ian Ward, University of Newcastle upon Tyne, are publishing Would John Stuart Mill Have Regulated Pornography? in the Journal of Law and Society (2014). Here is the abstract.

John Stuart Mill dominates contemporary pornography debates where he is routinely invoked as an authoritative defence against regulation. This article, by contrast, argues that a broader understanding of Mill’s ethical liberalism, his utilitarianism and his feminism casts doubt over such an assumption. New insights into Mill’s thinking on sex, sexual activity and on the regulation of prostitution, reveal an altogether more nuanced and activist approach. In this light, we argue that John Stuart Mill would almost certainly have recommended the regulation of some forms of pornography.

Download the article from SSRN at the link. 

Schauer On Mill's "On Liberty"

Frederick Schauer, University of Virginia School of Law, is publishing On the Relationship between Chapters One and Two of John Stuart Mill’s on Liberty in the Capital University Law Review. Here is the abstract.

An important question in free speech theory and in Millian scholarship is the relationship between Chapters One and Two of Mill’s On Liberty. This essay, prepared on the occasion of and as a comment on Vincent Blasi’s Sullivan Lecture at the Capital University Law School, argues that Chapter Two, dealing with the “Liberty of Thought and Discussion,” is best understood as an exception to the general libertarian themes of Chapter One Iand, indeed, the balance of the book), rather than as an instantiation of them. Only by undervaluing Mill’s views about the potential harms of speech, by making Mill less of a utilitarian than he claimed to be, and by slighting the social epistemic claims in Chapter Two can that Chapter be made compatible with Mill’s presentation of the Harm Principle in Chapter One and the rest of the book. But if we take Mill’s epistemic claims seriously (which is decidedly not the same as believing that they are empirically sound), then Chapter One can be understood as largely about actions that do not cause harms to agents other than the actor, and Chapter Two can be seen as an argument for why some other-regarding and harm-producing speech acts may, in the aggregate, produce sufficient social epistemic benefits as to be deserving of a special immunity from state control. It is true, as Blasi argues, that a concern for the character-building nature of both autonomy and confrontation with harmful speech may render Chapters One and Two compatible with each other, but that compatibility requires relegating Mill’s famous epistemic arguments to a secondary role, and requires seeing Mill in less utilitarian and more individualistic terms than he himself professed.

Download the article from SSRN at the link.