From Volume 89, Number 5 (July 2016)
The harm principle allows government to limit liberties as necessary to prevent harm. Does the freedom of speech present an exception to the harm principle? Most American scholars say yes. It is common practice to proclaim proudly that the U.S. Constitution protects speech even when it causes harm. But two tenets of the author of the harm principle himself suggest that, today, this answer may be too glib. For John Stuart Mill, the enhanced protection of speech is only a means to protect thought, and moreover, opinions lose their immunity if they cross over from thought into action. Together, these two points invite us to consider the possibility that the special protection we have come to afford, even to a newly broadened range of speech that goes well beyond thought, may be misplaced. There are cases, I will argue, in which we should be slow to assume that society is necessarily without power to protect itself from harm that expression may cause.