In their new book, “The Supreme Court and the Philosopher: How John Stuart Mill Shaped U.S. Free Speech Protections,” co-authors Eric Kasper and Troy Kozma look at how the Supreme Court has increasingly aligned its interpretation of free expression with Mill’s philosophy, as articulated in “On Liberty.”
Eric Kasper is professor of political science at the University of Wisconsin-Eau Claire, where he serves as the director of the Menard Center for Constitutional Studies.
Troy Kozma is a professor of philosophy and the academic chair at the University of Wisconsin-Eau Claire - Barron County.
Timestamps
00:00 Intro
02:26 Book’s origin
06:51 Who is John Stuart Mill?
10:09 What is the “harm principle”?
16:30 Early Supreme Court interpretation of the First Amendment
26:25 What was Justice Holmes’ dissent in Abrams v. U.S.?
30:28 Why did Justice Brandeis join Holmes’ dissents?
36:10 What are loyalty oaths?
40:36 Justice Black’s nuanced view of the First Amendment
43:33 What were Mill’s views on race and education?
50:42 Private beliefs vs. public service?
52:40 Commercial speech
55:51 Where do we stand today?
1:03:32 Outro
Abridged Transcript
Editor's note: This abridged transcript highlights key discussions from the podcast. It has been lightly edited for length and clarity. Please reference the full unedited transcript for direct quotes.
Mill’s harm principle and its application
ERIC T. KASPER, GUEST: John Stuart Mill argues that the government should only exercise power to prevent direct harm to others, not merely because an action is deemed immoral or bad for the individual. He is concerned about subjective definitions of morality leading to majority-driven prohibitions.
NICO PERRINO, HOST: Did he have a personal interest in this? Was he a transgressive radical in his beliefs and personal relationships, feeling the stultifying conformity of his contemporary English culture?"
KASPER: Prevailing moral attitudes of the time, including views on women's rights, were important to Mill and evident in his writings. Mill feared that government-enforced rules of decorum on speech could be used to suppress dissenting views while allowing favored opinions, leading to viewpoint discrimination.
Historical Supreme Court interpretations
KASPER: Early on, the Supreme Court followed common law principles from Sir William Blackstone's commentaries, which held that press freedom meant no prior restraints on publication but allowed post-publication penalties for criminal content. This view dominated early interpretations of the First Amendment.
For example, in Patterson v. Colorado, a newspaper publisher was held in contempt for criticizing a state Supreme Court decision. The U.S. Supreme Court upheld the conviction, asserting that freedom extended to both false and true statements, but punishment could follow publication.
PERRINO: In the early 20th century, some Supreme Court justices began introducing new notions about freedom of expression, influenced by Mill's ‘On Liberty.’ Troy, can you discuss the concept of the marketplace of ideas and how it made its way into the court?
TROY A. KOZMA, GUEST: “The marketplace of ideas was initially controversial and not accepted by the court. The principle is that truth or falsehood should not be legislatively determined but rather debated by people to discover the truth.
Although Mill acknowledges that truth doesn't always prevail, he believes reason will eventually win out. In the U.S., this concept means that individuals, not the state, decide the validity of ideas, with the hope that truth will ultimately emerge.
Mill’s views on education and race
KOZMA: Mill’s not just a little bit racist. He's very racist. I mean, this is one of the kind of blind spots that Mill has. So, I just wanted to sort of make it clear that not all of the stuff in On Liberty is justifiable. And that is one of the glaring exceptions.
PERRINO: Man, every great free speech advocate is also a bit of a hypocrite. You have John Milton, "Free speech, except for Catholics." And Mill, "Free speech, except for young people and non-English races." It's unfortunate, but you have to consider people in their times and not accept all their ideas, just the ones that stand the test of time.
KASPER: Mill's harm principle applies to those with mature faculties, raising questions about its application to students in public schools. Justice Black's opinion in Supreme Court case Tinker v. Des Moines reflects this debate, considering if free speech rights should apply to minors. Society assigns certain rights at different ages, like driving at 16 or voting at 18. The Supreme Court grapples with whether freedom of expression should be accessible earlier, acknowledging Mill's concern that young people might not fully grasp the harm of their actions.
Commercial speech
KASPER: Mill sees a tension in commercial speech because it is tied to the actual marketplace, not the marketplace of ideas. He does not address this in On Liberty and believes there is more room for government regulation in commercial speech. While not a socialist, he supports some market regulations as good public policy.
PERRINO: Where are we today for the Millian approach to free speech?
KASPER: By the mid-1960s, the Supreme Court, led by Justice William Brennan, embraced Mill's philosophy. Brennan cited On Liberty in the 1964 New York Times v. Sullivan opinion and used the marketplace of ideas analogy in the 1967 Keyishian v. Board of Regents case. In 1969’s Brandenburg v. Ohio, the Supreme Court established a test for incitement, reflecting Mill's views on when speech should be protected.
Ep. 222: John Stuart Mill’s lasting impact on the Supreme Court