Freedom of Expression, Autonomy, and Defamation

Freedom of Expression, Autonomy, and Defamation
Author(s): Filimon Peonidis

Source: Law and Philosophy , Jan., 1998, Vol. 17, No. 1 (Jan., 1998), pp. 1-17
Published by: Springer
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FILIMON PEONIDIS
FREEDOM OF EXPRESSION, AUTONOMY, AND

DEFAMATION1
Undoubtedly, the values of freedom of expression and personal

autonomy dominate the liberal agenda. Traditionally, liberals have
defended and fought for the right of the people to be the authors of
their decisions and for their right to speak free from governmental
interference. They have tended not, however, to explore in detail the
connection between these two rights. I subscribe to the view that
the above values are conceptually linked in the sense that autonomy
provides the most satisfying rationale for freedom of expression. In
this essay I will not argue for the superiority of the autonomy ratio-
nale vis-a-vis other candidates such as democracy, truth, toleration or
the marketplace of ideas. Instead, after offering a brief account of the
former, I will take up the problem of the legal regulation of defama-
tory speech as seen from the autonomy point of view. The arguments
given will be strictly philosophical, and although references to the
American legal theory and practice abound, the conclusions drawn
are taken to apply to common and civil law systems alike. The very
purpose of this normative inquiry is to provide legislators, legal
scholars and citizens in liberal democratic states with useful sugges-
tions and insight that may eventually result in specific interpretations
or changes in the existing free-speech legislation.
A. AUTONOMY AND FREEDOM OF EXPRESSION
Personal autonomy or self-determination is a complex

consisting of three basic elements. In particular, it presup
This essay is part of a book-length work in progress on the philos
foundations of freedom of expression. An earlier form of it was pre
conference on liberalism held at the University of Lotz, Poland in Septe
I would like to thank P. John Kozyris, W. Norman, S. Virvidakis, the a
referees and the participants of the conference for their valuable com
suggestions.
Law and Philosophy 17: 1-17, 1998.

? 1998 Kluwer Academic Publishers. Printed in the Netherlands.

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2 FILIMON PEONIDIS
combination of capabilities, opportunities and self-reflectio

ideally autonomous agency requires the presence of all o
By capabilities I mean certain skills that are the product o
tion; physical and psychological traits such as the ability t
speak, and think; and resources and means such as money an
the agent must possess in order to make and materialise im
decisions. The term "opportunities" refers to the existence
adequate, desirable and interesting range of options. And t
"self-reflection" describes the mental activity by which a
is examining her decision-making procedure and the pr
regulating belief- and desire-formation and acceptance in
revise, reject or identify authentically with her decisions, b
desires. From this definition it follows that personal auton
two dimensions, the volitional and the epistemic. The form
with the authenticity of decisions and desires, the latter w
formation of beliefs. These two aspects of autonomy are n
to assure the agent that there are no internal (bias, addict
so forth) or external (insufficient evidence, deception and s
factors preventing her from making the decisions she wo
to, and from knowing that her beliefs are in fact true an
fied. Ideally, the presence of these conditions enables agen
the basis of their approved desires, authentic decisions and
orated beliefs, combined with their capabilities and opport
- to exercise control over their lives and to pursue their c
tion of the good in a consistent and rational manner. No on
ideally autonomous, but most people can approach this ideal
ing degrees and the potential of the overwhelming majority
increased by securing the appropriate socio-economic enviro
There is a widespread conviction among liberals and many
that autonomy is not a matter of personal ambition but rather a
order moral ideal that generates strict obligations. Thes
2 This analysis has been shaped by the following works: Harry G. Fra
"Freedom of the Will and the Concept of the Person", The Journal ofPh
(1971), pp. 5-20; Joseph Raz, The Morality of Freedom (Oxford: Clarend
1986); Joel Feinberg, The Moral Limits of Criminal Law: Harm to Self
3 (New York: Oxford University Press, 1986); Gerald Dworkin, Th
and Practice of Autonomy (Cambridge: Cambridge University Press, 1
Crittenden, "The Social Nature of Autonomy", The Review of Politics
pp. 35-65.

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FREEDOM OF EXPRESSION, AUTONOMY, AND DEFAMATION 3
include the obligation to make everyone as autonomous as possible.

However, they include the duty to prevent unjustifiable restrictions
of people's autonomy and the morally equivalent duty to create
conditions that favour its exercise.
Now, the significance of freedom of expression for the pursuit
of autonomy is twofold.3 It is important for self-reflection and as a
capability. First, if expression is constrained, people are deprived of
valuable information pertaining to the decisions they make (or could
make) and of the means for reviewing their beliefs and desires.
Second, since many acts are brought about through some form of
oral, written or symbolic communication, the exercise of our auton-
omy is thwarted if restrictions are imposed on free expression. Many
of our decisions are expressive decisions and freedom of expression
is a necessary means for putting them into effect. Within their range
fall not only decisions to pursue trivial wishes and to make incon-
sequential comments, but decisions to affirm and to make public
the forms of life4 one cherishes. And it is even possible for some
of these expressive decisions not to aim at some further end, such
as the advocacy of one's conception of the good in the presence of
others, but to be valued per se as essential components of our well-
being. For instance, talking to oneself is of paramount importance
for someone in solitary confinement or for a child in its early stages
of development.5
A note of caution. It would be a mistake to see the autonomous
agent as a solitary self-sufficient individual who refuses to iden-
tify with a particular cultural tradition or to undertake long-lasting
commitments. "Autonomy does not entail", as Jack Crittenden points
3 Cf. Robert Young, PersonalAutonomy: BeyondNegative andPositive Liberty

(London: Croom Helm, 1986), pp. 89-96; Danny Scoccia, "Autonomy, Want Sat-
isfaction, and the Justification of Liberal Freedoms", Canadian Journal of Phi-
losophy 17 (1987), pp. 583-602; Susan Easton, "Autonomy and the Free Speech
Principle", Journal of Applied Philosophy 12 (1995), pp. 27-39. This account
bears some similarities with the theory of David A.J. Richards who drawing
upon Rawls stresses the role of "communicative integrity" to the development of
"our dual powers of rationality and reasonableness". See his Toleration and the
Constitution (New York: Oxford University Press, 1986).
4 This is a point Joseph Raz makes in "Free Expression and Personal Identifi-
cation", Oxford Journal of Legal Studies 11 (1991), pp. 303-324.
5 For the significance of egocentric speech for the co-ordination between
thoughts, language and actions in children see the classic study of L.S. Vygotsky,
Thought and Language (Cambridge MA: Harvard University Press, 1962).

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4 FILIMON PEONIDIS
out, "a necessary rejection of society's values or isolation

the presence of the influence of others."6 The crucial disting
ing mark of the autonomous individual is that she reflects u
the values prevailing in her society in order to endorse, modif
reject them, and that she is always ready to reconsider her com
ments, her attitudes and her conception of the good in the lig
new evidence. Moreover, expressive decisions are not exhaust
pursuing private and self-regarding projects; they can aim at a
ing collective goals such as convincing the authorities of the ur
of radical reforms.7
One can object to this account that it does not protect the freedom
of expression of non-autonomous people. This criticism can be
accommodated be claiming that, since autonomy is a matter of
degree, most people are regarded as possessing to a greater or lesser
extent the capacity of acting autonomously. For instance, even the
mentally ill make some sort of expressive decisions, even if they do
not meet all the criteria of autonomous decision-making. Undoubt-
edly, completely non-autonomous individuals, such as the comatose,
do not fall within the scope of the theory, but this, I presume, does
not matter much to them. After this brief account of the autonomy
rationale for freedom of expression we can proceed to a sketch of
the concept of defamation.
B. DEFAMATION
According to the Oxford Concise Dictionary of Law, def

is "[t]he publication of a statement about a person that
lower his reputation in the opinion of right-thinking member
community or to make them shun or avoid him." In the c
6 Crittenden, op. cit., 37.

7 Sometimes the use of the term "self-expression" instead of "auto
likely to lead to misunderstandings. Cf. the comment of Tom Campbell:
the concept of self-expression] does not capture the point of view of pa
who, routinely, are not interested in self-expression as such, but rather in
the world for some ulterior purpose, such as spreading a message the
in, changing government policy or protecting their own interests." "
for Freedom of communication", in Tom Campbell and Wojciech Sadurs
Freedom of Communication (Aldershot: Dartmouth, 1994), p. 35. I bel
the autonomy rationale clearly protects public statements made with
purposes.

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law tradition a plaintiff seeking to file a libel or slander action must

establish, apart from the existence of a defamatory communication,
(a) that, in addition to the libeller and his victim, a third person was
aware of the above communication, and (b) that the plaintiff can be
easily identified as its target.8 For the purposes of this inquiry I would
like to extend this legal definition to include statements that tend to
insult, hurt, provoke, humiliate and ridicule individuals, even if they
are not communicated to a third party. Furthermore, for our purposes,
the terms "statement" and "publication" should be given the broadest
possible interpretation by including not only written statements and
spoken words (libel and slander), but all the symbolic actions (like
gestures and pranks) people might resort to in order to overtly belittle
others. From the above definition it follows that one's conception of
defamation is directly dependent on the moral standards that prevail
in a specific society, since a person of good reputation is someone
who exemplifies certain commonly recognised moral qualities. But
even within this particularised context there is room for disagreement
as to what constitutes defamation.
In regard to their epistemic content defamatory statements can be
classified as true, false and indeterminate. If I keep telling every-
one I meet that "the fish served in Jim's restaurant is always rotten"
in order to make him move his business to another area, although
I know that this is not the case, then I am responsible for a false
defamatory statement. On the other hand, if I call a person of Asiatic
origin "slanty-eyes", no one can call me a liar, but my intention is to
make her feel inferior. However, the epistemic status of defamatory
words such as "slimeball" or "bitch" is indeterminate, since there
is no consensus concerning their correct application. It would be
futile to try to prove, in the strict sense, that someone is a "cunning
bastard", but still in most cases the audience understands what I
intend to accomplish by uttering these words. In this category we
can also include defamatory utterances devoid of truth-value such as
commands ("fuck off"), wishes ("may you rot in hell") or questions
(as when one publicly asks a politician: "Are all these bribes you
receive enough to satisfy your greed?"). Finally, the most common
8 See Ralph L. Holsinger, Media Law, 2nd edn. (New York: McGraw-Hill,
1991), pp. 90 ff., and Lyrissa Barnet Lidsky, "Defamation, Reputation, and the
Myth of Community", Washington Law Review 71 (1996), pp. 4-5.

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6 FILIMON PEONIDIS
defamatory strategies either focus on some negative aspect o

victim's character, appearance, behaviour or professional stat
they associate her with an easily identifiable (racial, ethnic,
gious etc.) group that is supposed by some people to possess c
negative qualities.
C. OUTLINING THE PROBLEM
The case of defamation poses an interesting challenge to t

bility of the autonomy rationale. Is the libeller's autonomy
thing that matters? And if it is not, when should the int
those affected by defamation take precedence? The handy
that defamation should be subject to civil and possibly
sanction (depending on the law in force) because it is offe
of no avail here.9 Offence is associated with certain undesirable and
disliked mental states one experiences, such as hurt, anger, shame,
sorrow, distress, embarrassment and anxiety that are provoked by
the conduct of another person and they are not accompanied by an
infringement of any other of the offended party's interests.10 But the
presence of these experiences is not in principle incompatible with
the autonomous life. The autonomous person is not necessarily a
happy person and she can do without pleasant feelings. Moreover,
autonomous decisions can be taken, even when one feels offended.
Of course, one can argue the offence caused by defamatory speech
dissuades people from being engaged in serious and constructive
dialogue, but this is not regarded as sufficient reason to warrant legal
9 Cf. the offence principle as defined by Joel Feinberg: "It is always a good
reason in support of a proposed criminal prohibition that it would probably be
an effective way of preventing serious offence (as opposed to injury or harm)
to persons other than the actor, and that it is probably a necessary means to that
end." The Moral Limits of Criminal Law: Offence to Others, vol. 2 (New York:
Oxford University Press, 1985), 1. Feinberg speaks of criminal prohibition but the
principle could be enlarged by assuming that causing offence is "good reason" for
holding someone legally responsible.
10 For discussions of the liberal conception of harm and offence see among
others Feinberg, ibid., Donald Vandeveer, "Coercive Restraint of Offensive
Actions", Philosophy and Public Affairs 8 (1979), pp. 175-193; Anthony Ellis,
"Offence and the Liberal Conception of Law", Philosophy and Public Affairs 13
(1983), pp. 3-23, and Jeremy Waldron, "Mill and the Value of Moral Distress", in
Liberal Rights: Collected Papers 1891-1991 (Cambridge: Cambridge University
Press, 1993), ch. 5.

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intervention." Thus, we should turn to the remaining options for

establishing the link between defamation and the autonomy rationale
for freedom of expression and its legal implications. This inquiry is
constrained by the need to reach conclusions that do not contradict
other fundamental liberal assumptions.
One solution is to bite the bullet and consistently avoid setting
any limits on defamatory speech on the ground that such an action
would constitute an unjustifiable violation of freedom of expression
and its underling principle. Within this frame, Jonathan Rauch12
holds that putting up with sexist and racist prejudice is the price we
have to pay for maintaining an atmosphere of intellectual pluralism,
an atmosphere that contributes significantly to the promotion of
self-development. David A. J. Richards also points out that hate-
speech and group libel laws are incompatible with liberal principles,
although his objections do not include, mistakenly in my opinion,
individual libel.13 First, he claims that "[I]f racism is in part rooted
in such abridgements of basic rights [i.e. the rights to conscience and
free expression], it cannot be a reasonable remedy for racism as such
for the state to abridge such rights even when its ostensible purposes
are to combat racist speech."14 Second, the enactment of group libel
' Perhaps, one might claim that her conception of the good is not to be offended
in any sense, but this does not constitute a plausible argument for legal intervention.
In a liberal society law must guarantee certain conditions (respect of basic positive
and negative rights, protection of economic freedom, absence of force and fraud
etc.) that make it easier for people to pursue a great part of their plans. However, it
cannot secure the successful completion of particular plans. From the fact one's
conception of the good might be limited in not having any contact with women, it
does not follow that a court is vested with the authority to issue a restrictive order
prohibiting all women from coming close to him.
12 "In Defence of Prejudice: Why Incendiary Speech must be Protected",
Harpers Magazine (May 1995), pp. 37-46.
13 The reasons upon which he draws this distinction are that (a) in individual
libel actions we have to deal with easily refutable false allegations and (b) in group
libel actions the communications under examination "express general consci-
entious views of speakers and audiences, whose nature and effect both depend
on evaluative conceptions". David A. J. Richards, "Liberalism, Free Speech, and
Justice for Minorities", in Jules L. Coleman and Allen Buchanan (eds.), In Harm's
Way: Essays in Honour of Joel Feinberg (Cambridge: Cambridge University
Press, 1994), p. 102. However, I cannot see why courts in general fare better in
establishing the falsity of, say, racial slurs addressed against individuals rather
than groups, and why it is unlikely for individuals to defame other individuals
relying on strong normative convictions.
14 Ibid., 101.

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8 FILIMON PEONIDIS
laws presupposes on the part of the state the outright rejectio

the persecution of certain normative ideas people express. Th
only has a stifling effect on public debate and discussion, but
counteracts the pivotal liberal commitment to a government
remains indifferent between substantive individual conceptio
the good.'5 Yet, these answers appear problematic and unsatisf
It is intuitively evident that in certain contexts defamatory s
can have dire consequences no liberal can condone. And, as to
arguments of Richards, one can retort that in extreme circum
and in concert with other strategies16 the law should contribute
struggle against racism and that a liberal government cannot
stance of moral neutrality when questions of social justice em
A second solution is to admit that autonomy does not o
absolute protection to every expressive act and point to other
that might justify restrictions on freedom of expression. This ap
to be the strategy of Martin H. Redish who acknowledges
in certain situations "free speech interests must give way ...
competing social interest" and for this reason some form of b
ing must be introduced.'7 Thus, defamatory speech can be su
to regulation. The trouble, however, with the second solution i
once the weighing of the principles validating freedom of ex
sion against other principles is allowed, the way is in a signi
sense paved for a complete suppression of speech. This is not
that those responsible for the above balancing will necessaril
priority to the various "social interests" that would be in eac
at risk at the expense of free speech values. Nevertheless, the
duction of different normative considerations that might be i
mensurable with autonomy can complicate matters to the ex
of facilitating arbitrary or biased decisions. The situation is f
aggravated, once we take into consideration the view - which
be traced back to Mill's On Liberty - that entirely uncontrov
non-trivial public statements are not common in pluralistic so
marred by unbridgeable moral disagreements and intense con
15 Ibid., 102.
16 For an illuminating discussion of nonlegal remedies for hate spe
campuses see Amitai Etzioni, The Spirit of Community: Rights, Responsibi
and the Communitarian Agenda (New York: Crown, 1993), ch. 7.
17 Martin H. Redish, Freedom of Expression: A Critical Analysis (Charl
ville: Michie, 1984), p. 55 and passim.

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of interests. This practically means that a court can always appeal

to some "social interest" put at risk by a defamatory communication
and decide its suppression.
A third solution is to espouse a more restrictive and moralized
conception of autonomy18, along Kantian lines, and then seek to
denounce defamation in terms of the latter. On this account there
is an inherent connection between autonomy and the determination
of one's actions by a self-imposed moral law. In Kant's words "a
free will and a will under moral laws are one and the same."19
Thus, perhaps, defamation cannot become a universal law, since an
agent might treat someone as a means only by making statements that
demean her in the eyes of a group she considers important. However,
this solution generates more problems than those it aims to solve.
First, it is not evident that it covers every type defamation, since Kant
might have not objected to "corrective" forms of defamation stem-
ming from a genuine and reasoned disapproval of depravity. Second,
the notion that only moral persons can be autonomous and vice versa
is no longer convincing, once we refuse to endorse the questionable
metaphysical doctrine that supports it. Third, the prospect of a legal
system protecting only those forms of expression that enforce the
Kantian moral law does not seem particularly attractive. Apart from
its tone of legal moralism, it reduces the number of permissible
categories of expression to a bare minimum.
Are these solutions the only available options or there is a fourth
more promising approach? In order to get a more complete picture
it remains to be examined whether defamatory speech unjustifiably
invades personal autonomy as it has been defined above. If this could
be established, then we would have good grounds for imposing legal
constraints on certain forms of defamatory speech.
D. TOWARDS A PLAUSIBLE SOLUTION
We can start our inquiry with deceptive defamatory speec

explore its impact on the exercise of personal autonomy. Dec
18 This seems to be the variant of autonomy David A. Strauss defends
"Persuasion, Autonomy, and Freedom of Expression", Columbia Law Revi
(1991), pp. 334-371.
19 The Moral Law: Kant's Groundwork of the Metaphysics of Morals, tra
and analysed by H.J. Paton (London: Hutchinson, 1953), p. 108.

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10 FILIMON PEONIDIS
defamatory speech can be envisaged as a subcategory of m

cious speech. Lying and deception, in general, make people ac
refrain from acting in ways they would not otherwise choo
They deprive agents of the opportunity to examine certain c
of action they could have taken into account if they had k
the truth. Suppose that a husband insincerely assures his wif
he always has been faithful to her, and she never learns the t
The inflicted harm consists in denying her the chance to thin
divorce. This harm is not alleviated by the fact that she migh
decided not to take any action, had her husband been truthful to
What matters in autonomous choice is not the form it will f
take, but the conditions under which it is made; and these hav
severely manipulated by the liar who is tampering with som
else's beliefs. Lying also invades epistemic autonomy. Since b
epistemically autonomous involves doing whatever possible to
true and justified beliefs, one is obviously harmed when, desp
efforts, she has false beliefs because someone else wanted it s
this holds even if the agent would never think of revising her
sions or her present desires. In the above sense every lie cons
an obstacle to the exercise of personal autonomy.20 By implic
the same holds for deceptive defamatory speech. Here, the libe
the slanderer intends to convey to an audience a false negative
of her target. Members of the audience swayed by false defam
assertions might start forming false beliefs or they might start
in ways they would not have chosen in the absence of these
tions. And the targeted person might realise that she can no
perform the actions she used to, that her options are unjust
limited or that her autonomy is severely impaired because of
assertions.
Now, an imaginary court which is called upon to decide a case

where false defamatory speech is involved, and which relies only on
the autonomy rationale must first prove beyond reasonable doubt the
falsity of the assertions in question. And any court slightly resem-
bling actual courts is expected to concentrate on simple and specific
ascertainable facts and to avoid passing judgement on the falsity of
views and opinions about science, religion, history, society or philos-
20 I elaborate this argument in my Lying and Morality (in Greek) (Thessaloniki:

Vanias, 1994), pp. 215-220.

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ophy. Then, it must establish whether the epistemic or the volitional

autonomy of certain agents has been invaded. In the first case it
should order a retraction. In the second case, apart from the retrac-
tion, it must order the defendant to offer some kind of additional
compensation or reparation for the damage caused by her actions in
order to restore, as far as it is possible, the status quo ante.2 Thomas
Scanlon, one of the most ardent supporters of the autonomy ratio-
nale, disagrees with this view. He claims that agents causing false
beliefs should not be held legally responsible, since the autonomous
agent - who "sees himself as sovereign in deciding what to believe"
- "could not allow the state to protect him against [these beliefs]
through restrictions of expression".22 However, given that none of
us is ideally autonomous, most people do not have the resources, the
time or the ability to scrutinise and to double-check every piece of
information they receive. Unavoidably, certain sources have to be
trusted and in a variety of cases individuals cannot discover the truth,
no matter how hard they try. For these reasons the public should -
within certain limits - be protected from liars including those who
deliberately make false allegations in order to tarnish the reputation
of others.
When true and uncertain defamatory expressions are involved, our
imaginary court has an easier task. Here, judges are required to assess
only the consequences of defamatory speech using as a criterion the
impairment of the autonomy of those affected by it.23 But in this
context more needs to be said about the nature of this impairment.
As we have already seen, the mere presence of unpleasant feelings
does not justify legal intervention. The plaintiff must have suffered a
21 It should be noted that from the moral perspective that is adopted here it
follows that when defamatory statements cause an irreversible loss of autonomy
(i.e. when the victim commits suicide) should not only lead to the award of civil
compensation but also become a matter for criminal prosecution. However, the
determination of the exact nature of the offence of defamation cannot be discussed
in abstracto but within a particular civil or common law system, and this falls
beyond the scope of this essay. For a discussion of the legal implications of lying
see Kent Greenawalt, Speech, Crime, and the Uses of Language (New York:
Oxford University Press, 1989), ch. 7.
22 "A Theory of Freedom of Expression", in R.M. Dworkin (ed.), The Philoso-
phy of Law (Oxford: Oxford University Press, 1977), p. 162 and passim.
23 For a criticism of the view that true defamatory communications should be
always permissible see Joel Feinberg, Freedom and Fulfilment: Philosophical
Essays (Princeton: Princeton University Press, 1992), pp. 130-132.

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12 FILIMON PEONIDIS
loss in her autonomy as a result of a defamatory assertion in the s

of being coerced to do things she wouldn't have done in the no
course of events, or of being unduly prevented from perform
significant acts of her choice. I will refer to certain character
cases which, of course, do not exhaust the whole range of pos
autonomy infringements. Consider the following findings abou
effects of racist speech:
Victims of vicious hate propaganda experience psychological symptom
emotional distress ranging from fear in the gut to rapid pulse rate and diff
in breathing, posttraumatic stress disorder, hypertension, psychosis and su
... To avoid receiving hate messages, victims have to quit jobs, forgo e
tion, leave their homes, avoid certain public spaces, and otherwise modify t
behaviour and demeanor.24
To be sure, most of these symptoms and consequences co

tute illegitimate invasions of personal autonomy. They apply
equal force to cases in which no third party is aware of the w
spoken out.25 Moreover, defamatory assertions can operate as "f
ing words", that is, in the US Supreme Court phraseology, wo
"which by their very utterance ... tend to incite immediate b
of peace".26 Potential addressees are likely to lose self-con
to respond forcibly and to start acting as heteronomous ag
Of course, ordinary autonomous individuals have to exercise s
restraint, especially those whose profession exposes them to con
provocation. Nevertheless, there are occasions in which almost
one is expected to react in a calm and reasonable manner, w
faced with certain challenges. Defaming someone can sometim
similar to falsely shouting "fire" in a crowded theatre, and th
something that our imaginary court cannot fail to take into acc
Finally, true defamatory communications that invade privacy
24 Mari J. Matsuda et al., Words that Wound: Critical Race Theory, Assau
Speech, and the First Amendment (Boulder: Westview Press, 1993), p. 24.
same holds for hate speech focusing on sex, sexual orientation, state of h
place of birth, religion or ethnic origin.
25 It goes without saying that actual courts cannot find that someon
committed slander, when the plaintiff or the public prosecutor fail to pr
any witness or convincing evidence, but this does not alter the significance
philosophical point made here. The important issue is to realise that defam
can impair autonomy, even if it involves only the slanderer and her victim.
26 Chaplinsky v. New Hampshire 315 US 568 (1942). See Kent Greena
Fighting Words: Individuals, Communities, and Liberties of Speech (Prince
Princeton University Press, 1995), pp. 50-53.

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constitute invasions of autonomy. Privacy is about our legitimate

interest to enjoy a personal free from intrusions domain to which
no one can have access without our consent. It is also about our
legitimate interest to present the public image we wish on condition
that we do not deceive people in some important sense. Respect of
privacy secures our control over a significant part of our life, and
allows us to adopt the lifestyle with which we are authentically iden-
tified and to determine our relations with others. Hence, if people
start disclosing facts about ourselves we wish to keep secret, we
do not just feel annoyed, but we suffer a more or less severe blow
in the exercise of our autonomy.27 In all these cases (and in many
more) to demand from someone to make reparations for the harm
caused by her expressive decisions or to impose another sanction
by no means amounts to holding her legally responsible for merely
advocating ideas that need to be eradicated or for using "improper"
and "forbidden" language.
Are there any general criteria our court may apply in deciding
whether there is a unjustifiable invasion of autonomy? I think that in
individual libel or slander actions the relevant criterion is the victim's
ability to redress the damage done, if any, without the court's aid.28
For instance, politicians and other public figures29 have effective
means at their disposal for successfully responding to defamatory
assertions concerning them. In certain cases no harm is inflicted on
them and, eventually, they might be benefited by the commotion
created. This, however, does not usually happen with non-publi
figures and in numerous occasions people need the court's verdict
to re-establish their reputation. Calling the prime minister "a God
damned racketeer" is not on a par with describing the local vicar
with the same words.
27 On the connection between autonomy and privacy see Sandra E. Marsall,

"Public Bodies, Private Selves", Journal ofApplied Philosophy 5 (1988), pp. 147-
158 and Hyman Gross, "Privacy and Autonomy", in Patricia Smith (ed.), The
Nature and Process of Law: An Introduction to Legal Philosophy (New York:
Oxford University Press, 1993), pp. 708-714.
28 This idea is brilliantly captured in the famous words of Justice Brandeis: "If
there be time to expose through discussion the falsehood and fallacies, to avert
the evil by the process of education, the remedy to be applied is more speech, not
enforced silence." Whitney v. California 274 U.S. 357 (1927).
29 Here we refer to "all-purpose" and "vortex" public figures, but not to invol-
untary public figures. For this distinction see Holsinger, op. cit., pp. 145-157.

181.47.135.193 on Mon, 11 Apr 2022 21:06:45 UTC
14 FILIMON PEONIDIS
In cases of group-libel or of non-individualised racial slu

appropriate criterion is whether the group targeted is in a d
taged position. This is confirmed by the lesser standards o
its members enjoy compared to other groups or by the
of hostility and informal discrimination prevailing against
Greenawalt remarks "[I]t is easier to be impervious to epithe
one is a member of a privileged majority than when one b
to a marginalized minority."30 Once again we realise that v
attacking Muslims in Britain or Greece is not equivalent to a
Muslims in Saudi Arabia. I do not wish to deny the difficu
actual court might face in establishing a link between vilif
of targeted groups and the encroachment of the autonomy
(or all) of their members, but this is a possibility that can
discarded from the point of view we adopt here. At any ra
aforementioned criteria are intended as general suggestions
as specific guidelines that have to be implemented by actual
without exceptions.31
At this stage one can raise the question about the significa
the autonomy-based approach of the - commonly invoked
vant cases - criterion of reasonable avoidability. I take this c
to mean that, if the plaintiff(s) could have easily avoide
exposed to defamatory messages, there is no case against th
dant. Here, a great deal of caution is needed. Could we appl
the case of a citizen who has been the target of a relentles
slinging campaign because she dared to question the propriet
nationalistic policies of her government? Obviously not, si
would amount to validating the "heckler's veto". I can save
30 Greenawalt, Fighting Words, op. cit., 64 and passim. Similar p

made by Wojciech Sadurski, "Racial Vilification, Psychic Harm, and Af
tive Action", in Freedom of Communication, op. cit., pp. 77-93.
31 Theorists, like Ronald Dworkin, in the wake of the Sullivan decisi
for a different criterion: "Anyone who claimed that he had been libel
be required to prove that the defendant was malicious, and not just ca
unlucky, in publishing the information the plaintiff claimed was fals
Coming Battles over Free Speech", The New York Review of Books, Ju
1992, 60.) Acting out of malice may be a reprehensible motive, but I can
how its presence is necessary for having an impairment of autonomy. Undo
most slanderers are malicious, but this is not something that should have a
on the process of assessing the autonomy-orientated consequences of def
communications.

181.47.135.193 on Mon, 11 Apr 2022 21:06:45 UTC
from many embarrassing situations by reluctantly remaining silent

or by refraining from acting in ways that matter to me, but this is like
yielding to an indirect threat. Although this is my choice, it cannot
be regarded as an autonomous one, since I do not approve of being
forced to choose between being vilified and doing things I dislike or
that are against my principles. On the contrary, this criterion can be
invoked in cases in which it is obvious that the defamatory message
was part of a private conversation (broadly understood) the plain-
tiff managed to monitor although she was not supposed to. There is
something odd in spying upon my opponents in order to overhear
a defamatory statement concerning me and then to bring suit for
damages caused by this communication. On the contrary, no court is
entitled to accept the claim that I should have found another school
to avoid seeing the racist slogans written all over the place in my
classroom.
Let me now give two examples of the application of the autonomy
rationale in actual cases. First, we could not justify the 1995 deci-
sion of a French court ordering Prof. Bernard Lewis, an American
historian, to pay a symbolic fine of one French franc, because he
contended that the Armenians invented the story of their genocide
by the Turks. No court can decide such a controversial issue and the
Armenian minority in France is not, to the best of my knowledge,
subject to systematic oppression, victimisation or racial discrimina-
tion. Armenians might feel outraged or offended by this statement,
but their autonomy is not so severely harmed as to warrant this
sentence, no matter how lenient or symbolic it has been. Second, in
the famous 1977 Skokie case, the march of an American Nazi group
in that Jewish Chicago suburb could be banned only for reasons of
time, place or manner. Since American Jews are not a disadvan-
taged minority, the Skokie authorities would have to prove - in a
manner consistent with similar past decisions concerning ordinary
demonstrations - that this march would seriously disturb the citizens'
(irrespective of ethnic origin or religion) everyday activities leaving
them with a limited and undesirable range of options.32 The situ-
32 It should be noted that the Nazis were planning to use slogans like "Free
Speech for the White Americans" that cannot be construed as "fighting words".
Cf. Norman Dorsen, "Is There a Right to Stop offensive Speech? The Case of the
Nazis at Skokie", in Larry Gostin (ed.), Civil Liberties in Conflict (London and
New York, 1988), pp. 122-135, and Feinberg, Offence, op. cit., pp. 87-88.

181.47.135.193 on Mon, 11 Apr 2022 21:06:45 UTC
16 FILIMON PEONIDIS
ation might have been different, if the target of the demonst

were the blacks, the Hispanics or the Indians, since now the ne
impact it will have on their already insecure status could cons
one additional argument in favour of the prohibition.
This account can be met with scepticism for various reasons
there are, at least, two major criticisms that need to be accom
dated. Traditional liberal supporters of free speech might expre
worry that the model outlined requires the banning of novels like
Satanic Verses and of other works of art in case it could be shown th
they affect negatively the autonomous agency of individuals b
ing to disadvantaged minorities. However, these liberal worrie
be easily assuaged. First, as argued above, mere offence do
warrant the suppression of expressive decisions, and artistic ac
cannot be excepted. Second, no one can convincingly claim tha
suffers a severe blow in the exercise of her autonomy becaus
has to refrain from purchasing a controversial novel or from
ing a cinema or an art gallery in order to prevent exposure to
messages. Finally, even in the extreme case in which self-gov
adults swayed by their reception of a certain work of art inaugur
policy of discrimination against a vulnerable community, it is
that have to be held accountable and not their source of inspir
This position gains in cogency if we take into consideration th
contrast with its non-artistic counterpart, artistic expression c
be deceptive, and suspension of disbelief and contextualizatio
among the factors making the difference. Thus, it follows th
only inference one can draw from the preceding analysis is t
people should not be forced to take great pains to avoid contac
works of art of any kind they could find upsetting or offensi
any reason whatsoever. Admittedly, legislators will encounter
culties in turning this rather abstract requirement into a wor
set of legal provisions, but the aforementioned liberal fears se
longer justified.
In addition, the same liberals can criticise the scheme I am prop
ing by invoking an equally disturbing implication. It could be a
that, apart from defamation, our account condemns unfavou
fierce criticism, since it is not unlikely for a critical statem
this kind to impair autonomous thinking and acting. For ins
authors and actors might turn depressive or refuse to leave their

181.47.135.193 on Mon, 11 Apr 2022 21:06:45 UTC
because of bad reviews they received. Should criticism warrant legal

interference if it turns out to bring about effects like the above? This
would be utterly unacceptable, since free criticism is not only the
oxygen of a liberal polity, but it constitutes an indispensable means to
the formation of authentic beliefs, desires and decisions. Thus, some
qualifications are pertinent. A critical comment can be regarded as
libellous if and only if it meets the following conditions: (a) it causes
a severe impairment of autonomy and (b) it is expressed in care-
fully selected coarse and derogatory language that denies explicitly
and in an indisputable manner the value the criticised individuals
possess as autonomous and equal persons. Here we not only have the
successful execution of a calculated assault on someone's capacity
for autonomous thinking and acting, but a serious and unjustifiable
curtailment of the latter that takes place as a result of this assault.33
This calls for carefully circumscribed forms of legal intervention no
reasonable liberal could reject.
In conclusion, the upshot of this mostly theoretical discussion
is that it is possible to defend in terms of a certain conception of
the autonomy rationale a scheme for regulating defamatory speech
(including group-libel) which does justice to the common under-
standing of its harmful implications, while at the same time respect-
ing the uncompromising liberal responses to those who claim that
offensive communications including unpopular and hateful ideas
should be made unlawful.
Department of Philosophy
Aristotle University of Thessaloniki
Greece
GR 54006
33 One can wonder if it is ever possible to increase someone's potential for

autonomous acting and thinking by defaming and humiliating her for that purpose.
Some teachers, trainers and major-sergeants seem to have faith in the value of
"pedagogical" insults, but these are of doubtful effectiveness and they are rejected
by modem educational theories. Perhaps, they might be of some use in certain
forms of psychotherapy.

181.47.135.193 on Mon, 11 Apr 2022 21:06:45 UTC

Freedom of Expression, Autonomy, and Defamation

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