Streetwise Professor

In reply to a comment yesterday, I mentioned John Stuart Mill, who clearly stands second to no one as an advocate for liberty. After all, one of his most famous works is titled On Liberty, which gives a full throated call for extending liberty as far as possible.

Mill is particularly relevant in the debate over whether only the government is the enemy of liberty. He answers quite the opposite:

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively over the separate individuals who compose it—its means of tyrannising are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compels all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism. [Emphasis added.]

The main problem that I have with Mill in this passage is his reification of society, which he portrays as a conscious, acting being. Perhaps that is merely a verbal shortcut. But that is not a problem when when addresses an issue that Mill could not have imagined in his wildest nightmares, but upon which I am quite sure he would have very strong views: whether those very real, conscious, acting beings in charge of social media corporations (and other corporations, e.g., banks who deprive services from those whose opinions they dislike) can “[practice] a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.” The answer of course, is a decided yes.

Mill’s conclusion, suitably modified, then follows:

Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of [censorious corporate managements]; against the tendency of [social media companies and other private organizations] to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compels all characters to fashion themselves upon the model of its own.

For what are we seeing today, but vicious efforts to “prevent the formation, of any individuality not in harmony with its ways, and compels all characters to fashion themselves upon the model of its own.”?

Mill recognizes that even liberty must have a limiting principle, and the bulk of his essay is devoted to determining that limit:

But though this proposition is not likely to be contested in general terms, the practical question, where to place the limit—how to make the fitting adjustment between individual independence and social control— is a subject on which nearly everything remains to be done.

In any line drawing exercise, there are difficult calls to make. But as the saying goes, hard cases make bad law. There are certain things that are not hard cases–and censorious managers of private corporations who selectively prevent the dissemination of speech on platforms ostensibly intended to disseminate speech is not a hard case. By Mill’s criteria for distinguishing a legitimate from an illegitimate restraint on liberty–“the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection”–what Twitter and Facebook and Google and Apple and Amazon do is “an illegitimate restraint on liberty.” They are not protecting themselves against any threat to their lives, persons, or property. They are attempting to impose their will on others who are posing no such threat.

I also recommend to you Mill’s discussion of free speech, which is particularly apposite today. One of the lines being pushed to justify selective censorship is a claim that this protects us from falsehoods. Mill considers and resoundingly rejects that assertion. His discussion in Chapter 2 of On Liberty is worth reading in full.

In sum, an essential element of Mills’ thought is that it is unduly cramped to conceive that only governments can restrict liberty, and that anything not done by a government cannot be considered a violation of liberty. Mill makes the argument that “society” can limit liberty. Setting that reification aside, he talks about specific cases, such as churches and religion. He certainly would recognize that tech companies (and myriad other companies too) are limiting liberty, and he would reject this on his strict utilitarian lines. One can also reject it on natural rights lines that Mill explicitly rejects.

But the point stands: private individuals and private entities can oppress, and deprive others of liberty. Depriving some of the liberty to restrict the liberties of others without the latter’s consent advances liberty, rather than detracting from it. Regardless of whether you advocate liberty on utilitarian or natural rights grounds–or maybe both–it is anything but libertarian heresy to support restrictions on the ability of private entities to deprive others of the freedom of thought, speech, and action.