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Thursday, December 08, 2005

War and Speech: A Moral Puzzle

Let’s assume, without deciding, that the following propositions are true:

1)  Americans have a robust First Amendment right to criticize the government. This includes both the decision to go to war and the conduct of war.

2)  The United States is facing a ferocious and determined enemy in Iraq. 

3)  The United States has a just cause, which means that victory by the United States is the morally preferable outcome.

4)   Certain forms of speech (for example, strong demands that U.S. troops withdraw) objectively aid the enemy (say this speech emboldens the enemy, so more U.S. troops die and chances for victory are reduced), even if the speaker does not intend to do so.

If all this is true, isn’t the speech in question morally objectionable, even if constitutionally permitted? Certainly, the fact that I have a legal right to say something doesn’t morally justify my saying it. If telling you (frankly and truthfully) that your new haircut makes you look ridiculous will hurt your feelings, maybe I should refrain from saying it. This is why the only way I see morally to justify someone who aids the enemy with his speech is to deny assumption 3), that the United States has a just cause. In that case, the correct moral position is indeed to demand that the troops return. But if  one accepts 3), then I cannot see how one can avoid the conclusion that the speaker is acting immorally.

Posted by fteson on December 8, 2005 at 10:04 AM in Fernando Teson | Permalink


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» When Is Anti-War Speech Immoral? from The Volokh Conspiracy
Fernando Teson has an interesting post on this question at Prawfsblawg here. [Read More]

Tracked on Dec 8, 2005 7:07:21 PM

» When Is Anti-War Speech Immoral? from The Volokh Conspiracy
Fernando Teson (PrawfsBlawg) has a very interesting post, which [Read More]

Tracked on Dec 8, 2005 7:55:17 PM

» Speech Aiding Enemies from Rebuttable Presumption
I think that Professor Teson is missing an assumption here: 5) The war is winnable AND we are going to stay until we win, no matter what. [Read More]

Tracked on Dec 8, 2005 8:05:55 PM


If the starting parameters about all 4 points being true is an absolute, then yes, criticisms of the conflict are morally unjustified. However, the criticisms are being levelled because these points are nto universally held to be true, specifically, people do not believe in the first part of Point 3, that the USA as a Just Cause (or other equally valid jus ad bellum requirements). The arguement as laid out by Prof Téson does work in theory, however, in practice the arguement for Just Cause is rarely, and certainly not in this case, absolutley black and white, leaving room for the debate that we are currently seeing. Furthermore, even if Just Cause is valid at one point in time, it does not necessarily remain valid under changing circumstances, allowing further opportunity for debate and valid criticism.

Posted by: rh344 | Jan 17, 2006 11:44:22 AM

Call this a casual trackback.

Posted by: Paul G. | Dec 15, 2005 7:05:15 PM

But as I explained before, the truth of your four initial premises (or six, if you count the ones you added in the comments at Volokh) would not entail the truth of your conclusions. Your original arguments are formally invalid. I attempted to reframe at least one of them as a valid syllogism so that there could be a meaningful debate about the two premises that are essential to your argument (one of which I teased out of you and one which you stated initially). If you want to assume those two premises -- the major and minor premise as I stated them in the second syllogism above -- then assuming you don't equivocate on what "aiding the enemy" means, you have a logically valid argument as to your first conclusion (that certain types of anti-war speech are immoral). But both premises are highly contestable, and you haven't offered a single reason to accept either one. And your second conclusion (that the only way to defend anti-war speech is to deny that the U.S. has a just cause) still would not logically follow. If this is all you set out achieve, mission accomplished.

Posted by: Neal R. | Dec 12, 2005 4:55:41 PM

To Neal: You're right that the argument requires acceptance of the premises, so the fact that I haven't provided support for the premises is not a valid criticism. If someone thinks either: 1) that the U.S. does not have a just cause, or 2) that the enemy is not really ferocious and determined, or 3) that the war is not winnable anyway; or 4) that antiwar speech does not aid the enemy in any significant way, then there is no issue.
To Joe: If antiwar speech will not really aid the enemy but "make success more likely", as you say, then one of the premises of my argument doesn't hold, and in fact, such speech would be morally praiseworthy.

Posted by: Fernando Teson | Dec 12, 2005 1:45:01 PM

So let me ask again. Suppose that the effect of anti-war speech on the enemy is in fact neglible to non-existant, but anti-war speech is essential to motivating the nation's leadership to conduct the war in a manner that will make success more likely (I understand, of course, that you don't share these factual assumptions). If this is so, why isn't your original post (which seeks to discourage such speech) immoral in light of your other premises (e.g., war is a just cause, we need to defeat a determined enemy etc.)?

Another question. If the analysis turns on what the facts really are, and there's uncertainty about this even among people who share background moral assumptions, is there anything gained by casting these factual disagreements as moral disputes?

Posted by: Joe | Dec 12, 2005 1:25:32 PM

(cross-posted at Volokh)

Mr. Teson,

You're not making it easy, but I think I can discern a couple of syllogistic arguments here. Do one of these capture what you're trying to say?

MAJOR PREMISE: "[H]elping the United States and democratic Iraq to succeed is a moral imperative."
MINOR PREMISE: Certain types of anti-war speech do not help the United States and democratic Iraq to succeed.
CONCLUSION: Therefore, certain types of anti-war speech are immoral.


MAJOR PREMISE: "[A]iding the enemy in this war, given these facts, is morally objectionable."
MINOR PREMISE: Certain types of anti-war speech aid the enemy in this war.
CONCLUSION: Therefore, certain types of anti-war speech are morally objectionable.

The first argument is invalid. The conclusion doesn't follow from the premises (I'm sure you see why).

The second argument is valid. The only way to deny it is to deny either or both premises. (I would also note that to avoid the fallacy of equivocation, must use the same definition of "aiding the enemy" in both premises. For example, if you mean speech or conduct that objectively causes more harm than good, then you must use that definition for both premises. If you mean any speech or conduct that causes any harm to the war effort, then you must use that definition consistently.)

Assuming the second syllogism roughtly captures your logic, my only problem with your argument is that you haven't offered any support for either premise. Your major premise -- that "aiding the enemy, given these facts, is morally objectionable" -- is a moral claim that presumably can be deduced by applying some unstated "moral principles" to the facts presented. You're entitled to assume the premise if you wish, but it would be more interesting if you did a little work to demonstrate it logically. You do say, "Victory will not only liberate Iraq. It will help oppressed peoples in the Middle East to get rid of their own dictators, it will help Israelis and Palestinians reach peace, and it will enhance the security of the United States." But these are some pretty bald assertions, and even if we assume them all, they don't logically establish that aiding the United States is a moral imperative or that aiding the enemy is morally objectionable. (Again, we need a major premise that states the general moral principle applicable to these facts.)

Your minor premise, on the other hand, begs clarification. Is the assertion simply that certain types of anti-war speech cause some objective harm to the war effort? That they cause more harm than good? If the latter, how do you balance the good with the harm? This is why I brought up the question of the good that anti-war speech might do. You seem ready to dismiss the possibility entirely without explaining why. I think it is worth considering. My example of anti-war speech potentially pressuring civilian leadership to conduct the war in a manner less likely to incite reprisals against U.S. troops was only one example (hence the "e.g"). And it does not assume that only reason the insurgents are fighting us is the way we are conducting the war; it just assumes that some insurgent attacks can be traced to Abu Ghraib, accidental bombings of civilians, and the like, and that anti-war speech may help make recurrences of such events less likely. Many other examples of the good anti-war speech can do have been raised on this comment thread. I don't understand your basis is for dismissing them all, because you haven't offered any.

In any event, the main point of my previous comment was to point out that you previously had hadn't put together a deductively valid argument. If the second syllogism I proposed above roughly captures your argument, at least we have come that far.

Posted by: Neal R. | Dec 12, 2005 12:45:39 PM


Again, I understand that you personally are not saying lying necessarily is best, and I believe you when you say that you personally aren't lying. My point, however, which you don't deny, is that other people who believe your premise (saying the war is going badly is immoral) but who also think things are, in fact, going badly in Iraq, could therefore conclude that lying about the war was both rational and moral, because it was for the greater good.

So, I think you should consider the implications of your argument in cases where the underlying "truth" is different than you think it is in this particular case. Because it's an inescapable result of your argument that some -- not all, not you, but some -- people would lie.

And this isn't hypothetical. It's clear that a sizeable chunk of the American population no longer trusts the Bush admin. to give an honest assessment of what is going on in Iraq. That's at least mostly because a sizeable chunk of the American population thinks that the Bush admin. and its supporters have given a much too-positive spin on things in the past. If we assume that part of the too-positive spin was because of a belief that a more critical analysis would undermine morale, etc., then the unintended consequence of your theory seems to be a big credibility gap.

Posted by: Joseph Slater | Dec 12, 2005 11:14:18 AM

Joseph: I do not say that lying is necessarily justified in this case (although one could imagine that it may be, textbook examples abound). People can keep silent, as I said in my previous comment. My view on all this is not utilitarian in any straight way. In deciding whether my act (including a speech act) is justified, I must weigh all relevant factors, including the presumptive immorality of lying.

Posted by: Fernando Teson | Dec 12, 2005 10:48:26 AM


You write: "if you think things are going badly in Iraq, it is an open question whether you should say it, all things considered. If you think that saying it helps the enemy, etc., you don't have to lie, just keep silent, . . . ."

So, by your logic, some of the folks who say that the war is going well could very well be lying, because they could resolve that "open question" by deciding (rightly or wrongly) that the potential benefits of seeming positive outweigh the potential costs of seeming negative.

So, why should undecided folks, or folks interested in objectively accurate information about what's really happening in Iraq, listen to war supporters that believe your argument that war criticism undermines the war? You (plural, not you personally) could be lying because you think it's for the greater good.

Posted by: Joseph Slater | Dec 12, 2005 10:23:16 AM

Let's see. The major premise you mention (the one that you say I missed) is not necessarily "speech that (objectively or subjectively) will cause more harm than good is immoral." That would commit me to a straight utilitarian view, which I do not endorse. Rather, my position is standard in moral philosophy: an act (including a speech act) is immoral in the light of applicable moral principles given a set of facts. This includes deontological as well as consequentialist elements. For example, it matters morally the kind of harm or good that the agent causes. And that is in turn related to the importance of the value that is being frustrated by the act. Applying these abstractions to the war in Iraq, I would say that helping the United States and democratic Iraq to succeed is a moral imperative. Victory will not only liberate Iraq. It will help oppressed peoples in the Middle East to get rid of their own dictators, it will help Israelis and Palestinians reach peace, and it will enhance the security of the United States. It follows that one should focus primarily on this war, not on speculative or remote good consequences that the act of speech in question may have. For example, many critics have said that criticism of the war strengthens the health of our democracy, etc. Well, there are many ways to do that that do not necessitate aiding the enemy (saving criticisms for later, or outvoting republicans in the next election, for example). Given all that, I don't think it is enough to justify aid to the enemy to say that antiwar speech "puts pressure on the civilian leadership to incite to conduct the war in a manner less likely to incite violent reprisals against U.S. troops."
So my view is not that "aiding the enemy in a war is always immoral". Rather, it is "aiding the enemy in this war, given these facts, is morally objectionable." If my speech aids the enemy in some way but my government is waging an unjust war, then my speech is not only permissible: it may be even morally mandatory. If my government is waging a just war but the aid I provide with speech is inconsequential, then, depending on the values that are being served by that speech, it will not be immoral.
But this is not the case here, as was not the case in Vietnam. The enemy is counting on help by the antiwar movement, here and in Europe. And it is not too farfetched to predict that, as in Vietnam, that movement may be instrumental, even decisive, for the defeat of the U.S. forces. Again: this would be fine if the U.S. were waging an unjust war (my argument does not rely on patriotism), but in reality it would be a disaster, given that the U.S. has a just cause.
(By the way, your example of justification of antiwar speech contains, in my judgment, false factual premises. It assumes, for example, that the main reason why the Iraqi insurgents fight us is because of our conduct of the war. You must be assuming that otherwise they would love us and would happily join the efforts to build a democratic Iraq. I hope you won't require me to document why this position is wrong.)

Posted by: Fernando Teson | Dec 12, 2005 9:46:28 AM

(cross-posted at Volokh)

Mr. Teson,

As has been pointed out repeatedly in the comments, your conclusions (that certain forms of anti-war speech are immoral and that the only way to morally justify such speech is to deny that the U.S. has a just cause in Iraq) don't follow from your premises. The addition of two new premises (in the comments at Volokh) does not ameliorate this problem.

Try casting your argument in syllogistic form. One of your chief problems is that you are missing a major premise, which would state the general conditions under which speech is immoral. I suspect you're assuming something like, "Speech that objectively causes more harm that good is immoral" or "Speech that one has reason to know will cause harm and that objectively causes more harm than good is immoral." But your conclusions still wouldn't follow if you assumed this premise as well -- you'd also have to assume that the harm caused by anti-war speech outweighs any good it causes (e.g., by putting pressure on civilian leadership to conduct the war in a manner less likely to incite violent reprisals against U.S. troops).

As it stands, your "argument" is logically invalid -- a series of questionable assumptions followed by two unsupported conclusions.

Posted by: Neal R. | Dec 12, 2005 8:50:12 AM

No, because keeping silent is not the same thing as lying. If you think things are going badly in Iraq, it is an open question whether you should say it, all things considered. If you think that saying it helps the enemy, etc., you don't have to lie, just keep silent, hope our trops prevail, and save your criticisms for later. Just imagine in 1944, when the powerful German counteroffensive in Les Ardennes was unleashed, if a barrage of critics would have started claiming for our troops to stop fighting and return, AND that speech would have actually helped the Germans win the war. I see the Iraq war, on the whole, as morally equivalent. I'm so glad Churchill resisted his critics in 1939, those who blamed him and not Hitler.
My original post tried to do two two things. First, I tried to get the critics, or at least some of them, to concede that they don't really think the U.S. and the democratic Iraqi government have a just cause (this is the only way they can distinguish Iraq from my WWII hypo.) Second, I wanted to show that trotting out the "free speech/healthy debate" cliché does not resolve this difficult moral question.
And by the way, I don't think things are going as badly in Iraq as critics say.

Posted by: Fernando Teson | Dec 11, 2005 5:11:10 PM

Here's my question to the people that believe that criticizing the war is immoral, hurts the troops, etc. If you really think that saying "things are going badly in Iraq" is immoral, then presumably you wouldn't say "thinks are going badly in Iraq" even if, deep down, you really believed that things were, in fact, going badly in Iraq. Instead, you would deny that things are going badly. If that's the result of your moral calculus, then why should anyone believe you when you deny that things are going badly? Because you would say that even if you didn't mean it/believe it, right?

Posted by: Joseph Slater | Dec 11, 2005 1:38:53 PM

The first paragraph was addressing Richard Aubrey's comment, as I took his paragraph beginning "Washer." to be responding to me.

Posted by: washerdreyer | Dec 10, 2005 1:17:54 AM

Washerdryer: I do not understand your comment. I did not respond to your earlier comment, so maybe you're referring to someone else's post. for the rest, I have no rancor against anyone.

Posted by: Fenando Teson | Dec 9, 2005 10:17:48 PM

I certainly didn't have anything involving armor in mind when I was typing, and can't quite figure why you're responding as if that was what I was talking about. What I said, to briefly summarize, is that deciding that it would be great if a goal would be achieved doesn't tell you anything about the conditions under which it can (practically or morally) be achieved.

I'm also not sure where the rancor against Sam Heldman came from, was his initial comment somehow outside of acceptable criticism?

Posted by: washerdreyer | Dec 9, 2005 9:53:43 PM

I think the Medium Lobster just made this point...

Posted by: Paul Gowder | Dec 9, 2005 3:47:49 PM

There seems to be a dodge going on here. Speaking against the war does not include making suggestions as to tactics.
To pretend the latter is part of the former is absurd.
I doubt that saying better tactics are needed will help the enemy except if the technical details are made public.

Washer. If you wish to complain about underarmored vehicles, see the M4 Sherman in WW II. Our soldiers died in droves in the "Ronson" as the Germans called it because, as the lighter's ads said, it lit first time, every time. Or, when the Brits had it, the Krauts called it "Tommycooker".
I have no doubt this has never occurred to you except as a tool of convenience for this war at this time.
No vehicle has sufficient armor. It is only sufficient for a certain type of attack. More powerful attacks will defeat it.
It is not possible to get the job done by putting all our grunts and supplies in Abrams tanks, which could be destroyed by a larger IED anyway.
Jeeps were never armored, or rarely. Lots of guys died in jeeps. You complained to whom? Got copies of the letters?

Visualize transparency.

Posted by: Richard Aubrey | Dec 9, 2005 3:45:09 PM

This reminds me of an old military saying. "soldier, shut-up and soldier.

Posted by: sam1 | Dec 9, 2005 2:02:42 PM

I hadn't realized you were so prickly; my apologies for engaging in the debate you started.

Posted by: Sam Heldman | Dec 9, 2005 1:49:37 PM

No need to give advise, Mr Heldman. I only thanked those who made good comments.

Posted by: Fernando Teson | Dec 9, 2005 1:42:57 PM

To the extent that you think that there is something to your main point but it needs to be refined, I suggest that -- in order to enhance your own thinking, and also to see whether others think it has validity -- you should make the argument about something other than the "war on terror."

The reason I suggest this is that, when the "war" or something else so hotly-political is the subject of the hypothetical, it will be harder for you and your readers to see whether there is in fact any meaning to the argument beyond a mere attempt at political point-scoring.

So, see if you can make the argument perhaps along these lines: "if you postulate that eating meat is immoral, then advocating against forced vegetarianism is immoral." Or if you think that you are saying something more refined than that, then refine it. My hunch is that you will see that there is nothing useful about what you are trying to say, in the end.

Posted by: Sam Heldman | Dec 9, 2005 1:06:06 PM

I thank all those who made good comments to my post. I have really learned from them and see that, while I stand by the main point I made, the argument has to be refined.

Posted by: Fernando Teson | Dec 9, 2005 10:34:17 AM

Because it contains a trivial thread of truth and invites ad hominem conflict, proposition #4 is a rhetorically powerful enthymeme that no beleagered government would ever let go to waste. Cheney already accuses critics of criminal negligence. But that's polics. If something can be said, it will be said.

Fernando Teson wants us to judge good and evil. The irony of condemning a harmful speaker is that the the truer the speech, the greater the harm can be. For example, "Our troops are poorly armored," was devastating. On the other hand declaring that "God will stop American bullets and turn American bombs to duds," would cause little damage to the effort.

Teson's proposition would be more fitting to a theocracy or enlightened despotism than it is to our democracy. Citizens under such regimes are not just outside the loop, they actually hurt the greater good when they step outside their place. We, on the other hand, are not innocents. Government marches to our mandate. Therefore, we have a duty to persuade, and to allow ourself to be persuaded by, excellent rhetoric. Especially during war, when second thoughts are hard to repress and hard to discuss.

The immoral speech of this war in Iraq came before it started. Our president was a cheerleader at the bonfire before the game. He robbed our democracy of the nobility we would have earned by choosing the high purpose we stumbled upon, too late to give it effect.

Posted by: Scroop Moth | Dec 8, 2005 9:48:34 PM

Just a couple of days ago, the two chairmen of the 9/11 Commission gave the media a report card (with more F's than A's) on the Administration and Congress's lack of follow-up on their suggestions that would make America safer from another attack. Were they being moral or immoral, letting both terrorists and American's know that, they are no safer today than they were on 9/11?

Our soldiers in Iraq are dying in droves, because they are riding in under-armored vehicles. The Pentagon knows this, yet it keeps sending those soldiers out to die in those vehicles. Is that moral or immoral?

Speaking out against this misguided, illegal and immoral war, isn't just moral, its a duty of Americans to demand better solutions to ending it, than "staying the course", and leaving with a "victory" in President Bush's legacy pocket.

It should be self-evident, that our military was thrown into a deadly game, with an incomplete playbook. That playbook has no two minute drill of proven plays, that will bring a victory at the end of the game.

Posted by: Yebby61 | Dec 8, 2005 9:24:14 PM

While others have their own objections, I see point 3 doing almost all of the work in this argument. If you define a just cause as "installing a functioning liberal (small l) democracy with a monopoly on the use of force which controls the same territory previously controlled by Saddam Hussein," and victory as that state of affairs coming into existence, almost everyone will agree that this is "morally preferable" (in quotes only because it's very strange phrasing) to either the status quo or Saddam's regime. And I think this (at least close to) how the poster is using those words, though I'm open to correction.

Almost all of the disagreement (some people may also disagree about the morality of violating state sovreignty for any reason, but this looks like a subset of debate over means) is over what means it would take to acheive that, whether it was ever realistic (or just) to use those means, and what we should do if we realize that it isn't going to be achieved with means that we are willing, both practically and morally, to use.

To illustrate with a very extreme example, killing every person who was living in Iraq during Saddam's regime, except for 10, after which the 10 of them will peacefully be governed democratically by each other, would satisfy the just cause and victory stuff, but no one (I hope) thinks those means are acceptable.

Posted by: washerdreyer | Dec 8, 2005 8:49:14 PM

The problem I have with this post has been alluded to by others, including c&d.

Namely, isn't it basically true by definition that a protester of the war disagrees that "victory in the war by the U.S." is the morally preferable outcome? Doesn't a protestor basically by definition believe that the morally preferable outcome is ending the war effort?

If there is disagreement over what's the best outcome, then there's disagreement about premises. Maybe the protestor is right and maybe you're right, but if it's an honest disagreement then I don't think moral culpability comes into question here.


Posted by: mk | Dec 8, 2005 8:08:37 PM

so more U.S. troops die and chances for victory are reduced

The flaw is that you essentially assume your premise. You assume all criticism of the war's conduct reduces the chance for "victory." In other words, that the war is being conducted as perfectly as possible.

It is perfectly possible and, indeed, rational, to support the goals of the American adventure in Iraq while recognizing that the administration has made a hash of it.

Posted by: | Dec 8, 2005 7:46:34 PM

Premise 3 is unacceptably vague. It is not enough to say that "victory by the United States is the morally preferable outcome" -- you need to specify what cost it is worth to achieve this outcome. Otherwise someone can perfectly well say, "Sure, victory by the U.S. is "preferable" in the abstract, but not worth the cost it will likely take to achieve it, even without my adding to that cost. I will therefore speak against it, which I know will add a bit to the cost of victory, in the hopes that we'll see our error and avoid the costs of victory altogether by getting out of there."

Posted by: Christopher M | Dec 8, 2005 7:26:17 PM

Very good comment, Savitri. Let's see if I can respond. If the scenario you describe can be plausibly anticipated, that is, if final victory can be foressen, then I think that the criticism is not morally objectionable. The key to your hypo, I think, is that the option you recommend in your criticism of the war is morally (and militarily) preferable to the option of continued mistakes with likely final defeat. So, you are essentially correct. Merely emboldening the enemy is not enough to say that the criticism is objectionable, because sometimes "emboldening the enemy" is a link in the causal chain that leads to victory.

Posted by: Fernando Teson | Dec 8, 2005 4:31:14 PM

Let's say I criticize the US government for how it's conducting the war. I say, "we are making, and have made, huge mistakes. Our only solution and recourse now is to spend every last dollar earmarked for the war on building up and training a powerful Iraqi military force". The US govt. agrees with me, diverts all resources to doing so, trains a cadre of Iraqi soldiers (quickly, but expensively), and withdraws all US troops immdiately thereafter. Bloody civil war ensues (the enemy has been emboldened, thinking that we aren't committed to our words, or aren't capable of executing them properly.) The American-trained Iraqi troops finally do prevail, and in the end, order and democracy are established. The End.

Was my criticism morally objectionable or not?

Posted by: savitri | Dec 8, 2005 4:01:38 PM

Or, speech would not be immoral so long as the speaker reasonably does not agree with your assumptions. If someone accidentally aids the enemy in an attempt to help the United States, they are not acting immorally.

Posted by: c&d | Dec 8, 2005 3:19:35 PM

"then I cannot see how one can avoid the conclusion that the speaker is acting immorally."

I don't think you are trying very hard.

Speech which "objectively aid[s] the enemy" can also aid the United States or Iraqis. For example, critical speech might encourage one more subside bomb attack per month, but at the same time critical speech introduces new ideas, and encourages more effective military and political acts, reducing suicide bomb attacks by ten per month. What it the moral thing to do? Aid the enemy! (and the United States).

Posted by: c&d | Dec 8, 2005 3:13:04 PM

Well, unlike some of the above speakers, who seem intent on bringing their own convictions on the factuality of the propositions to the table, I think that the reasoning is not terribly poor.

1: It's possible to argue that critisizing the government is immoral. If we assume this, then speaking against the war is indeed immoral.

2: Iraq may or may not be a ferocious enemy, this is a matter of fact and probably not in question.

3: Justification for war is its own moral issue, more in a bit, but obviously we should assume it to argue the conclusion.

4: Speech aiding the enemy is a factual determination. It may or may not aid the enemy, but we are assuming it does.

So obviously, as stated above the question is: is speaking in favor of immoral positions itself immoral? If we are assuming for the sake of argument that the facts are correct and that free speech is moral, then it is certainly a possible conclusion that speaking against the war is immoral, as that speech is, in essence, increasing the number of casualties on both sides as long as we continue the war effort (And this certainly would fly in an entry-level ethical philosophy course).

To add something new, even if you disagree that the war is just, perhaps it is still immoral to speak out against the war. If your speech has no chance of changing the government's policy on the war, then it could still be immoral, as you would be aiding the enemy without a compensation on the other side (the war will continue, but less effectively). From a Kantian perspective, we might say that we'd rather people not do ineffective things when dealing with a morally wrong situation, since it is preferable that everyone do the most effective thing to prevent immoral activity.

But, on the other hand, motives might matter. If you are making a point by playing the devil's advocate and speaking in favor of something like slavery in order to create moral outrage (thus promoting a moral position by others), then your agreement with an immoral position could in fact be moral.

But I think it is easy to show that supporting an immoral position is immoral, even without consequences. The more interesting question is that if you agree with 1-4, but feel that the government is not prosecuting the war as effectively as they could be, then is speaking out against the current strategy immoral? By speaking against the way the government is fighting the war, you are impeding the effort, but the government is presumably acting immorally by not fighting as effctively as possible. In that case, there would have to be some sort of balancing test - will your speech cause a change, to what degree will it harm the war effort, and how much would it help the war effort to make the change? And is silence regarding a moral issue as culpable as speech for an immoral position (assuming degrees of immorality as opposed to a strict moral/immoral dichotomy)?

Posted by: D Conrad | Dec 8, 2005 2:31:51 PM


I suppose you are right that there are some deontologies that would be consistent with your number 3, but not all, you still need to assume one of them. One might simply have a view that "aiding" causes that are evil is not necessarily evil, depending on the form that such aid takes. That is, that the fact that one's non-coercive speech causes coercive evil forces to prevail simply doesn't much matter from a moral point of view.

Posted by: Will Baude | Dec 8, 2005 2:01:16 PM

This is without question the most poorly reasoned post I have ever seen on this blog. It would get a failing grade in introductory college class in moral philosophy. In addition to all the other objections raised above, the "puzzle" doesn't even make sense. It says to assume 1 through 4 and then says, with no supporting argumentation, that the only way to deny the conclusion stated is to deny assumption number 3. But why not deny another assumption -- say number four? Also, note that the conclusion does not follow from the premises. Even if we accept one through four, Mr. Teson hasn't in way connected those premises to his conclusion about the "morality" of dissent on the war. I would suggest Mr. Teson attempt to reframe his "puzzle" as a logic syllogism. Then we can perhaps have a meaningful discussion on the subject. If morality is nothing more to Mr. Teson than a sense he gets having made some questionable assumptions, then perhaps he should leave this discussion to others who have thought things through a bit more.

Posted by: John T. | Dec 8, 2005 1:35:49 PM

Mr. Teson's argument is not only consequentialist--his proposition (4) is also an impoverished form of consequentialism. (4) only looks at the short term consequences of such speech, without recognizing that a healthy tradition of dissent makes it more likely that the U.S. will not prosecute unjust wars in the future, thus saving many more innocent lives in the future than are lost because of the speech today.

Posted by: Dave | Dec 8, 2005 12:48:53 PM

FT, I have no idea what your last sentence just above means, in attributing to me some "assured confidence." Maybe it's because I don't know what the words "the outcome of the moral calculus between x and y is clear" could possibly mean. The only thing I can think is that you are saying that I am urging that speech will make a "loss" in Iraq more likely -- but that's not what I am saying, that was instead YOUR fourth postulate. If you are attributing some other thought to me, I can't figure it out.

Posted by: Sam Heldman | Dec 8, 2005 12:18:48 PM

The post may be simplistic, but certainly it is not circular. I cannot share Sam's assured confidence that the outcome of the moral calculus between having healthy debate (assuming heroically, that that's what we're having)and losing the war in Iraq is so clear.

Posted by: Fernando Teson | Dec 8, 2005 12:00:18 PM

And if this sort of sophistry is what counts as intellectual diversity in law schools, count me out.

Posted by: Sam Heldman | Dec 8, 2005 11:52:04 AM

This post is no more meaningful than the simple sentence, "I think that it is immoral to speak in favor of things that I think are immoral." One could just as well say, "If you accept the postulate that gay marriage is immoral, then it is also immoral to advocate for gay marriage, since by doing so you increase the likelihood of that immoral thing occuring." To the extent that it is not just a meaninglessly circular thing to say, it is affirmatively wrong by any reasonable moral calculus that includes an appreciation for healthy debate.

Posted by: Sam Heldman | Dec 8, 2005 11:49:59 AM

Mmmm. I don't think so, Will, because an action described as "aiding the enemy" can be criticized either on deontological or consequentialist grounds. I assume a nonconsequentialist approach to speech is something like "by criticizing my government I display my moral autonomy and my political freedom." Surely no sensible nonconsequentialist approach claims that this "freedom display" is a moral absolute. If in exercising my autonomy I am aiding the enemy (or, as you say, reducing the chances of success of a just war), then there is a moral issue, whether or not you are a consequentialist. Finally, voluntarily to refrain from saying something that I have a constitutional right to say is also to exercise my moral autonomy.

Posted by: Fernando Teson | Dec 8, 2005 10:59:45 AM

I should note that this sort of consequentialism is to some extent packed into assumption 3, since the idea of "morally preferable outcomes" appears to presuppose that morality is only concerned with outcomes. If that is indeed the assumption, it would be better to make it a separate premise.

Posted by: Will Baude | Dec 8, 2005 10:51:35 AM

I think you need some 5th assumption that some sort of consequentialism is the only proper approach to moral questions.

If not, then one could simply say: "Yes, my speech causes just wars to be slightly less likely to be effective, but so what?"

Posted by: Will Baude | Dec 8, 2005 10:50:01 AM

To Jason's subtle comment: 1) The puzzle remains even if one rejects the either/or approach to morality, as you suggest we do. In that case, aiding the enemy with speech is more objectionable than shutting up. 2) That free speech is a moral principle there's no doubt, but that principle only says that speech should not be impeded by others, especially the government, not that we act in a morally justified way every time we speak. 3)If someone is a pacifist, then she denies assumption 3)(because there can never be just cause anyway) so indeed the correct approach is to urge that the U.S. stop fighting,as I have conceded.
To Marc: In that case, you deny assumption 4). I agree that if speech does not aid the enemy, then there is no issue.

Posted by: Fernando Teson | Dec 8, 2005 10:37:18 AM

Let us also assume, without deciding:

5. That the war has been poorly conducted by the nation's leaders.
6. That these failures have directly led to the deaths of more Americans and Iraqis than would have been the case absent such policies.
7. That robust criticism of the conduct of the war is likely to stimulate better conduct of the war and that this effect is greater than any purported emboldenment of the enemy.

If this is true, isn't the post above morally objectionable? Certainly, the fact that I have a legal right to post something doesn’t morally justify my posting it. But if one accepts 7), "then I cannot see how one can avoid the conclusion that the [Mr. Tesson] is acting immorally."

Posted by: Joe | Dec 8, 2005 10:31:33 AM

Isn't it possible, though, that this presents a bit of a false dilemma -- that is, to suggest that this kind of speech must be EITHER moral OR immoral? Might we not have a kind of "hierarchy of morality" to work out here? That is, isn't it possible that "withdrawal speech" might be considered "more moral" if premise #3 is rejected (i.e. the U.S. cause is not just), and "less moral" is premise #3 is accepted (i.e. the U.S. cause is just).

We consider the principle of free speech to be a moral one, and perhaps it may be argued that those who call for withdrawal in Iraq are also struggling with a hierarchy of morality," insomuch as they might consider the U.S. cause in Iraq to be morally good, but also consider the effort to save American soldiers' lives to be moral, and perhaps also consider war in general to be immoral (or at least less moral), etc., etc.

In other words, in judging the morality of a given act, isn't its morality more accurately assessed in relation to the morality of other acts that share a contextual relationship with the act in question, rather than attempting to reduce it (and any other) to a simplistic moral/immoral designation?

Posted by: Jason | Dec 8, 2005 10:22:18 AM

What on earth is this post supposed to be arguing? You'd be better off deleting it and starting over. It reads like an exercise in Volokh Conspiracy-style disingenuous Left-baiting. Really, man. You can't be serious. Make a real point and you'll get real feedback.

Posted by: Guest | Dec 8, 2005 10:20:44 AM

The assumption is that speaking out against your government leads to your nation's troops being killed in greater number than they would had you not spoken. How does saying "US troops are fighting an unjust war" lead to the "enemy" having better military efficacy?

Posted by: Marc | Dec 8, 2005 10:18:14 AM

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