Freedom of Speech

Larry. J Alexander

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351723817
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Geographie

This title was first published in 2000. This text presents a two-volume collection of theoretical articles on the topic of freedom of speech. The articles have all been written since the early 1970s. The first volume begins with an encyclopaedia entry, functioning as an overview of the topic, and further articles deal with justificatory theories of freedom of speech, the scope of the First Amendment, the value of free speech, communication control in law and society, and what kinds of acts raise freedom of speech concerns. The second volume turns to doctrinal theories, examining insults, incitements and governmental subsidies. Areas addressed include distinctions between content regulations, Robert Post's concepts of the public forum and public discourse and their bearing on free speech doctrine, and the significant arena for free speech controversies in the future.

Part I
Overview

[1]
Freedom of Speech

Larry Alexander

University of San Diego

I. The Scope of Freedom of Speech: What Is “Speech”?

II. Who Has the Right to Freedom of Speech?

III. What Are the Justifications for Freedom of Speech?

IV. The Major Classifications of Government Acts Implicating Freedom of Speech

Glossary

autonomy The condition of being self-governing.

compossible Describing the ability of individuals’ rights to coexist without conflicting in any possible situation.

consequentialist Referring to theories of ethical justification that base ethical assessment of acts exclusively on their consequences.

deontological Referring to theories of ethical justification that base ethical assessment on features of acts other than and in addition to their consequences.

incidental restrictions Restrictions on speech that are not aimed at its communicative aspect.

FREEDOM OF SPEECH is widely held to be a moral right and almost as widely recognized as a legal right. It was defended by John Milton in the 17th century and enshrined in the Constitution of the United States in 1791 as part of the First Amendment. Some form of recognition of freedom of speech is expressed in almost every modern constitution and international protocol regarding human rights. Yet, as revealed by the jurisprudence under the First Amendment of the United States Constitution—which is by Car the most developed free speech jurisprudence—and the enormous body of philosophical and legal commentary on freedom of speech, the justification(s) for and the contours of freedom of speech are much mooted. Moreover, there are some, even in liberal democracies, who deny any special importance to freedom of speech, and there are others who deny its coherence as a concept.

I. The Scope of Freedom of Speech: What Is “Speech”?

Freedom of speech has always been thought to cover more than what is literally speech, that is, spoken language. For example, no one disputes that it covers written language as well as spoken language. Moreover, it is difficult to see how it could be withheld from sign language, pictographs, pictures, movies, plays, and so forth, and indeed the legal protection afforded freedom of speech has been extended to all of these media of communication and expression, as well as to abstract artistic and musical performances. Usually, then, freedom of speech refers to—and is frequently referred to as—freedom of expression or freedom of communication.

It is a commonplace to distinguish between “speech” and “symbolic speech” As the previous paragraph should make clear, however, that distinction is illusory. All speech employs symbols, whether they be sounds, shapes, gestures, pictures, or any other tangible medium. There is thus no such thing as nonsymbolic speech; there is only speech that employs symbols that are less or more conventional. The same point also applies to any purported distinction between speech and “conduct” or “action.” All speech requires conduct of some sort, and any conduct can be communicative. The conclusion to be drawn is that freedom of speech should be thought of as freedom of communication.

II. Who has the Right to Freedom of Speech?

It is most natural to think that if there is a right to freedom of speech, it must be the right of the speaker. Thus, when the government threatens S with punishment if he attempts to give certain information to A, we are tempted to regard this as a violation of S’s right to freedom of speech.

On most accounts of why freedom of speech should be protected, however, it is A’s freedom of speech that is violated whether or not S’s freedom of speech is also violated. For assume that S is the author of a book and is now dead (or the citizen of a foreign country). He has no freedom of speech now in A’s country. If A’s government is violating anyone’s rights by prohibiting the dissemination of S’s book, it is A’s (the audience’s) rights. Moreover, if A’s government prohibited A from watching sunsets because it feared A would be inspired to have subversive thoughts, freedom of speech would arguably be implicated, even though there is no speaker.

In suggesting that the right to freedom of speech is best thought of as belonging to the audience, I do not mean to imply that people have a claim right against the government or anyone else that they be spoken to or provided with information. If the right of freedom of speech ultimately belongs to the audience, it is in the form of a right not to be prevented from obtaining information or ideas that are otherwise available to it.

In saying that free speech is best thought of as a right of the audience, I also am not saying that speakers have no standing to object to having their speech suppressed. Frequently it will best serve the audience’s right to hear if speakers are given a derivative right to speak. Indeed, in most cases where government interdicts a communication between a willing speaker and her audience, the speaker will be in the best position to assert the right to freedom of speech, both because the audience may be unaware of the attempted communication and because the audience’s right depends upon the speaker’s being willing to speak. (The right is not a claim right against the speaker that she speak.)

III. What are the Justifications for Freedom of Speech?

There are numerous theories regarding the justification(s) for freedom of speech. Each theory produces a different conception of what freedom of speech encompasses and when it is violated. I shall lump the theories into four broad groupings.

A. Consequentialist Theories

1. The Search for Truth

One common justification advanced on behalf of freedom of speech is that such freedom is instrumental to the discovery of truth. Freedom to disseminate new information and to criticize prevailing views is necessary for eliminating misconceptions of fact and value.

Although this justification is frequently criticized as resting on a philosophically naive realist view about facts and values, that criticism is off the mark. The justification for free inquiry as a means for discovering truth is not tied to any particular metaphysical view about fact or value.

The real problem with this justification is not in what it assumes about the nature of truth but in what it assumes is the best procedure for obtaining truth. In domains in which obtaining truth is the principal value—for example, in legal proceedings—speech is regulated and circumscribed. Even in the area of scientific inquiry, professional journals refuse to publish claims that the editors believe are not properly substantiated, and faculties and laboratories refuse to employ those who hold what in the opinion of the faculties and laboratories are outlandish views.

Moreover, it is a mistake to assume that truth is something quantifiable, so that we can assess alternative regimes based on how much “truth” each produces. There is no single thing called Truth that we can obtain, either absolutely or in varying degrees. To ask whether a regulation promotes or impedes Truth is to ask a question that is essentially meaningless, like asking how many individual things there are in the universe. All regulations, and all failures to regulate, produce different environments, and each environment reveals some truths and obscures others.

Of course the truthseekers might want to see the question posed differently. Instead of posing the question in a way that invokes Truth, one might pose a specific truth-seeking question: whether a specific regulation promotes or impedes a scientific truth.

One should concede that there are specific truths—“right answers” to specific truth-seeking questions. One should concede that some of those specific truths can be viewed as particularly important to obtain. These concessions having been made, it would follow that if (1) a governmental regulation interferes with the search for the answer to a particular question—a particular truth—and if (2) obtaining the answer to that particular question is viewed as very important, then (3) the regulation is unjustified unless (4) the other values served, or “truths” revealed, by the regulation are equally as important as obtaining the answer to that particular question.

For example, one might believe that forbidding the publication of the Pentagon Papers substantially obstructs the search for the truth about U.S. involvement in Vietnam, and that the “truths” and other values served by keeping the Pentagon Papers secret are less important than the truth about that involvement. If one subscribes to this belief, then one will condemn any attempt to restrain the publication of the Pentagon Papers, even though, because of other values that would be implicated, one might not allow citizens to search the Pentagon looking for those papers, or one might punish those whose thievery was responsible for their publication.

The problem with the “quest for truth” as a theory of free speech in the “specific truths” sense is that one cannot extrapolate from the quest for specific truths to any recognizable general theory of free speech. The quest for specific truths demonstrates only that some speech does help answer some questions that are relatively important, and that regulation of speech sometimes will be unjustified. Other speech contributes litde toward answering some questions; some activities other than speech contribute a great deal toward answering some questions; and answering some questions is less important than, and occasionally is downright destructive of, other values that even avid specific-truth seekers would want to protect or maximize.

2. Maximization of Other Values

There are other values besides Truth that freedom of speech might advance. These values are various; they include individual self-rule, individual self-development, and political self-rule. To the extent that we can characterize these theories as based on the general value of autonomy, they seek to maximize autonomy rather than to treat it as some absolute or near-absolute side constraint.

The autonomy these theories seek to maximize, however, is not affected only by regulations aimed at communicative impact, that is, by regulations designed to prevent audiences from learning certain information or hearing certain arguments or opinions. Autonomy also is affected by any regulation that affects the information and opinions one receives—that is, by all governmental regulations. All of government’s regulations—those affecting access to information; access to the indefinite diversity of the media of communication; access to private property in others’ possession that may be useful for communicating generally, certain ideas, or in a particular form—affect the ideas that individuals receive. Hence, all government regulations influence individuals’ self-rule and self-development. And, of course, the interests that government balances against speech—such as security of person, security of property, and protection of privacy—all affect autonomy values.

Thus, these consequentialist theories all require some sort of balancing mechanism. Balancing is required so that government can, for example, decide whether allowing Able to bum Baker’s dollar bill without Baker’s consent (in order, say, to protest inflation in front of a particular audience and with a particular communicative effect) advances autonomy more than not allowing Abie to do so (with the resulting benefits of protecting security of property while permitting whatever speech would result if property allocations were undisturbed, and so forth).

Consequentialist theories require that speech be assigned a “proper value” in furthering autonomy. They likewise require that other values be assigned “proper weights” relative to autonomy. Surely “speech” has some value, and surely the value of “speech” varies with its truth, its importance, and so forth. Therefore, these theories require some government agency—ultimately courts or legislatures—to assess speech for its truth, importance, and so forth, as well as to balance the value of “speech” against other values.

None of these theories justifies the special treatment of “speech” as distinguished from other activities that contribute to autonomy. None of them justifies distinguishing courts from primary governmental decision makers, either by treating courts as more trustworthy balances or by recognizing a special need for a second opinion from the courts with respect to “speech” but not with respect to other activities. None of these theories even presents a comprehensive scheme.for balancing speech against other activities that contribute to autonomy. None of them, indeed, presents a comprehensive scheme for balancing “autonomy” against other values.

B. Democratic Theories

Freedom of speech is usually thought of as a right to be asserted against the government, even when, as, for example, in the United States, that government is democratic in nature. Yet a very prominent group of justificatory theories of freedom of speech find the central justification of that freedom to be its affiliation with democratic decision making. One idea is that democratic decision making requires an informed citizenry, and an informed citizenry requires freedom of speech. A separate idea is that democratic (in form) decision making is legitimate (and truly democratic) only if public opinion is not itself shaped by the government

Versions of democratic justifications of freedom of speech vary in scope. Some versions are very narrow, treating freedom of speech as concerned only with communications about governmental policies and personnel. Others are much broader, arguing that informed self-rule requires protection of scientific, literary, artistic, and other types of speech along with the overdy political. The broadest of these theories are operationally indistinguishable from either those which justify freedom of speech as maximizing autonomy, as already discussed, or those which justify it as a deontological side constraint, as discussed further on.

The problem with justifying freedom of speech by its relation to democratic decision making is that both being democratic and being informed are matters of degree. A regime that protects freedom of speech from democratically passed restrictions is in one sense—an informed citizenry—more democratic, and in another sense—democratic laws are struck down—less democratic, than a regime in which democratic decision making is unlimited. Moreover, no citizenry is ever perfectly informed about anything; all information about some things comes at a cost, including the cost of displacing information about other things, and all laws, including laws restricting freedom of speech, bring some new information and opinions into the world at the same time that they eliminate other information and opinions.

C. Deontological Theories

The last group of justificatory theories view freedom of speech as justified, not by its ability to maximize some value such as truth or autonomy, and not by its association with a particular form of government, but by an argument from an asserted moral right not to have government prevent people from having certain ideas because of its fear that they will not respond to those ideas appropriately. The right is deontological in character. Its recognition is not something to be maximized. Rather, it is a side constraint on government’s action.

These deontological theories logically require that we look not at gov...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I OVERVIEW
• PART II FREEDOM OF SPEECH
• PART III FOCUS: ACTION REGULATED OR GOVERNMENT REASON?
• Name Index