Freedom of Speech
Hebrew University of Jerusalem - Faculty of Law
September 21, 2011
COMPANION TO PHILOSOPHY OF LAW, Andrei Marmor, ed, Routledge, Forthcoming
Freedom of speech is among the most cherished constitutional rights in liberal democracies. The primary task of this survey is to examine why (and whether) speech ought to be protected more (or differently) than non-speech activities.
To address the normative question of why speech is protected as well as to identify what counts as speech we examine below in Part II four major liberal theories purporting to justify the protection of speech: the marketplace of ideas, the autonomy-based theory, the self-realization and the democratic justifications. We establish that none of these theories alone can justify the protection of speech as is currently practiced in contemporary liberal polities.
In recent years many feminists and ethnic or religious minorities have challenged the protection of certain forms of speech. More particularly it was claimed that certain forms of speech either conflict with other rights, e.g., equality, or even may deprive minorities of the capacity or ability to exercise effectively their own right to free speech (the silencing argument). It is the task of Part III to explore some of the minoritarian challenges to what constitutes speech and what constitutes protected speech.
Some radical critics of liberalism challenge the importance and significance of freedom of speech as such. They maintain that freedom of speech masks large-scale silencing and repression. “Repressive tolerance,” as it is sometimes labeled, is a radical position that rejects central, traditional, liberal political rights in the name of values such as autonomy and equality and regards the liberal protection of speech (independently of its content or merit) as a repressive mechanism designed to strangle rather than facilitate genuine public deliberation. These challenges will be examined in Part IV.
I conclude by pointing out that the three positions described below (liberalism, minoritarian critics of liberalism and radical critics of liberalism) share similar assumptions and values. To the extent that minoritarian and radical critics of liberalism advocate restrictions of speech, they do so by invoking the very same values advocated by liberals: autonomy, dignity and equality.
Number of Pages in PDF File: 35
Date posted: September 22, 2011
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