Conflict Resolution and Collective Action

The resolution of a conflict of freedoms appears to call for some form of collective action. However, a libertarian would want to be very careful about concluding from this that this action should take the form of state censorship of freedom of expression backed by the force of the criminal law. It may come to that, but not before one has examined very carefully the various forms that collective action could take.

We would agree, I suppose, that freedom of expression which took the form of propagandistic activities which would actually lead to civil disturbance and dissolution of civilized behaviour must be prevented. However, it is far from easy to trace the quantitative connection between the output of such activities and the undesired result. The very assurance that entry into the ideas market was free might prevent any connection at all, for the preaching of revolution would be swamped by alternative views. Put in another way, a society committed to freedom of expression, subject to negative externalities, presupposes the existence of a populace trained in the civic virtues of tolerance and understanding of different points of view and the resolution of conflict by agreement. If these virtues are absent, then there is no way that conflict could be resolved.

Where freedom of expression imposes a substantial negative externality on a sizeable proportion of the population, it may be an overreaction to accede to state intervention to ban such activities. The extent of the externality might be minimized in some way. Thus active propaganda for pornography may have to be restricted in some way, but those who perceive benefits from watching pornographic displays can conduct their activities in private.

Where freedom of expression, as in the attack on the behaviour of a specific individual or organisation, is perceived by those attacked as damaging their interests, this seems an issue best dealt with under the law of libel and slander. I agree that this tells us nothing about the scope of the law and the severity or otherwise of the damages awarded if the case is won. Communities have very different evaluations of the nature and extent of damage. A colleague of mine who wrote a book on Greek philosophy was described in a Californian newspaper reviewing his book as a well-known homosexual. He and his British lawyers considered that this statement was libellous and warranted heavy damages, but were amazed to find that in California the statement would not be so regarded and that it might even be taken as something of a compliment!
It must be conceded, however, that some general rules need to be formulated about what forms of freedom of expression are allowable and what are not. The presence of general rules must imply some method of enforcing them, but we are not yet at the stage of arguing for criminal legislation.

One reason for proceeding with caution is that the public recognition of the detriment suffered by victims of self-expression may influence those who have attacked them and those who are tempted to follow their example to adopt a system of self-regulation. Thus professional organizations see that it is in their own interests to lay out a code of conduct for members accompanied by a disciplinary code laying down penalties for non-adherence to the code of conduct. Likewise, in the UK, advertisers have to submit themselves to an Advertising Standards Authority and the Press to a Press Council both of which are financed by a levy on members of the appropriate professions.

The analogy here with the detriment suffered from cigarette smoking is perhaps relevant. Smoking is not expressly forbidden but a succession of obstacles are put in the way of smokers which are designed to get them to stop or at least not to inconvenience non-smokers. Smokers are first of all warned about the possible consequences of their activities, and cigarette packets have to be marked with a government health warning. The negative externalities suffered by non-smokers are reduced by the growing number of 'no-smoking' areas in public buildings and vehicles. Finally, the smokers' pockets are hit through discriminatory taxation on tobacco.

It is reasonable to claim that my argument points to much more specific action by government than incentives offered to private organizations and warnings to 'put their house in order'. So far as I am aware, Western countries have legislation designed to control quite severely obscene and blasphemous publications and latterly to prevent the screening of comparable material by means of TV and the cinema. I do not think that there can be any hard and fast rule about the content of such legislation which has to be framed very carefully so that it does not conflict with constitutional rights to freedom of speech. What is permissible and on what terms very much depends on public opinion and how far such opinion exercises political influence. The only point I would make is that there is a case for automatic review of such legislation, rather along the lines used in voting for the annual budget, though annuality is perhaps too stringent a requirement. Every three years, say, the legislation on control of freedom of expression' might lapse automatically and its continuance, in whatever form, would require a new act of legislation which, if appropriate, could be an amendment of the previous enactment or simply the replication of the previous legislation.