Scanlon’s Contractualism: Idea on Freedom of Speech on Social Media

A blog for legal issue, politics and news

Recently, the court in the US held that clicking “like” on social media is part of free speech. Majority believes that this is the correct decision, and freedom of speech has been discussed in different contexts depending on how individuals look at it. Philosophers have always had different views about freedom of speech. In this blog post, I am going to summarize T.M. Scanlon’s idea on freedom of speech which is heavily influenced by the idea of contractualism.

Basic idea of Contractualism

As T.M. Scanlon has very strong views about tolerance. He believes that in order to answer the question on freedom of expression, one must employ the idea of contractualism. This view attempts at giving a unified account of morality which we have those duties to other people.  In the major concept of morality, it includes whatever else we may owe to specific people, such as the special obligations we bear in relations with friends and family, or whatever else morality may require of us. However, Scanlon holds that what we owe to each other is distinct from such conception of morality.  The term contractualism indicate that morality is based on contract or agreement. In Scanlon’s words,

An act is wrong if its performance under the circumstances would be disallowed by any set of principles for the general regulation of behaviour that no one could reasonably reject as a basis for informed, unforced, general agreement.

The idea of contractualism nevertheless is highly adopted to his idea of freedom of expression. Scanlon believes that there is a tension between the value of freedom of speech and the undersirability of people to express misleading views. Accordingly, people must be given the freedom to express themselves as long as they do not express misleading views. Scanlon believe that an open society is the key to development because citizens have an opportunity to participate in nation building without fear of intimidation.

He emphasizes the value of an open society and believes that a state that does not allow its citizens to object some of its activities cannot claim to promote legitimate political institutions. In his view, the legitimacy of a political institution is defined by the ability of citizens to express their views. He also believes that one cannot talk about freedom of expression without mentioning autonomy.

The Relationship between Freedom of Expression and Autonomy

According to Scanlon, freedom of speech has its legitimate restrictions that need to be acknowledged. He argues that it is legitimate to deny conspirators, false advertisers and those who may be involved in carrying out dangerous presentations or idea.

Scanlon believes that freedom of speech has intrinsic value because it is important that individuals as autonomous, whether or not this results in good consequences. Scanlon’s position does not imply that being able to express oneself freely is valuable as a means to the end, or it is a goal of being autonomous. Rather, it is simply to express that being able to express oneself freely is part of what it means to be autonomous. Since autonomy has an intrinsically valuable, freedom of expression is also intrinsically valuable.

Scanlon also provides six example of harmful speech. He believes all these examples are legitimate to prohibit in order to prevent any kind of harm.

In sum, certain expression should be permissible to justify for legal limitations:

  • Expression produces direct physical injury or damage
  • Expression which produces harmful or unpleasant states of mind
  • Expression which causes others to form an adverse opinions, or defamation, or interference with right to fair trial
  • Expression which causes individual’s panic, for example, in the case Schenck v. United States (1919), a person shouted “fire!” in a crowded theater when there was no fire. His speech caused individual’s panic.
  • Conspiracy to commit a crime;
  • expression which provides means rather than reasons.

Scanlon believes that the tolerating advocacy of views is the price we should be willing to pay if we want to have an open society. Government should be more neutral and objective when it comes to curtailing false advertising compared to political views. He believes that a government that claims to promote an open society should allow citizens to express their political views freely.

So, should clicking “like” on social media be regulated? In Scanlon’s perspective, this case could not be regulated because the employees who got fired did not have any expression that caused harm to their employer. Clicking “like” button indeed was a way to express certain idea or opinion.  The employer could argue that the employee’s expression was a way to interference with right to fair. However, the appeal court panel seemed to adopt Scanlon’s view in the way that “liking a political candidate’s campaign page communicates the user’s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.” Thus, the employees’ action cannot cause any harm to their employer because the employer should expect the criticism or rejection from the public including his or her employees.

Yet, this court decision does not mean that it will protect every action on social media. If someone clicks “like” button which causes harm to others, such as supporting cyber-bullying, death threat, and hate speech, the law will regulate such action.


Heartbreaking Images (2013 Week 39)

This blog post is about what happened in 2013 Week 39.

Legal Elite / A blog about news, legal, and politics

Topless feminist protesters storm the catwalk at Nina Ricci as Paris Fashion Week. Picture credit and Read More at here. Continue reading

Protecting children of celebrities from paparazzi

In this video, Anderson Cooper discusses a new law that aims to protect the celebrities’s children from gossip reporters and paparazzi.

I believe this law is constitutional. The law wants to protects minority at the first glance. Many celebrities give up their large amount of privacy for work and they do not want their own children to overexpose in public. Also, putting their children in public can have certain risk, as children have no idea how to protect themselves from strangers.

If one comes up with the idea that the States has the right of freedom to expression, that will sound totally unethical in the case of protecting minority. As an adult, we should protect children’s safety and not overuse the idea of freedom. Although paparazzi or gossip reporters are doing their job, they should also respect celebrities and their children.

Anderson Cooper 360

California Governor Jerry Brown signed a new law that’s designed to protect the children of celebrities from aggressive paparazzi. But the panel debates whether this law is constitutional.

View original post

Scalia Expects NSA Wiretaps to End Up in Court

Judge Scalia believes that NSA will end up in court because there is no constitutional prohibitions for collecting information. Conversations are not explicitly granted privacy protection under the Fourth Amendment, which protects against Americans against unreasonable search and seizure of “their persons, houses, papers, and effects.”


McLEAN, Va. — Supreme Court Justice Antonin Scalia said Wednesday that the courts ultimately will have to determine the legality of surveillance programs by the National Security Agency.

And he’s not sure that’s a good thing in an era of complex security threats against the United States.

Scalia told the Northern Virginia Technology Council that questions about how much information the NSA can collect about Americans’ telephone calls and under what circumstances the agency can monitor conversations are best answered by the elected branches of government.

But he said that the Supreme Court took that power for itself in 1960s-era expansions of privacy rights, including prohibitions on wiretapping without a judge’s approval.

“The consequence of that is that whether the NSA can do the stuff it’s been doing … which used to be a question for the people … will now be resolved by the branch of government that knows…

View original post 489 more words

Humanitarian Intervention and War on Terror after 9/11

I summarized legal argument and some issues on humanitarian intervention and War on Iraq in my previous blog post. The issues on Iraq War nevertheless started from terrorist attacks on September 11, 2001. The humanitarian intervention in fact has changed since then. So, what did the terrorist attacks on 911 affect on humanitarian intervention? There are two views on this question.

Humanitarian Intervention and War on Terror after 9/11

9/11 Now and Then Picture Credit:

Continue reading

Discussion: Was Iraq War a legitimate humanitarian intervention?

The idea of Humanitarian Intervention

Since 9/11, Western states have expressed humanitarian sentiments in relation to many different types of war. Humanitarian intervention poses a hard test for an international society built on idea of sovereignty, non-intervention, and the non-use of force. The society of states established law forbidding the mistreatment of civilians and recognizing basic human rights. However, these principles often conflict with non-intervention. Sovereign states are expected to act as guardians of their citizens’ security. If such state act as criminals towards their own people, should tyrannical states be recognized as legitimate members of international society?

Continue reading

Reddit Bans Subreddit “Find Navy Yard Shooters’ « CBS DC

Reddit Bans Subreddit “Find Navy Yard Shooters’” from CBS DC is about the crowdsourcing for criminal investigation on social media.

I am a Redditor. I love the social media site, Reddit, because I can find some interesting information over there. I can also share what I think good website to people. Reddit is also a place for people to exchange information easily. However, sometimes the communication on Reddit can go too far.

Washington Navy Yard Shooting shocked many people on Monday. In response to the shooting, a reddit user created a community forum, named “Find Navy Yard Shooters”. The group dedicated to identifying the gunman in the Washington Navy Yard shooting, but it was banned by the administrator shortly after it went online. Continue reading