The Structure of a Free Speech Right

The Oxford Handbook on Freedom of Speech (Stone & Schauer, eds., Forthcoming)

UCLA School of Law, Public Law Research Paper No. 20-32

27 Pages Posted: 20 Oct 2020

See all articles by Stephen Gardbaum

Stephen Gardbaum

University of California, Los Angeles (UCLA) - School of Law

Date Written: October 19, 2020

Abstract

What do you have by virtue of being the holder of a free speech right? This chapter in the forthcoming Oxford Handbook on Freedom of Speech provides an overview of the underlying structure of free speech as a legal right by analyzing and illustrating its component parts. It shows that the answer to this question can vary considerably depending on how these parts are addressed and combined. The six components, or structural elements, of a free speech right are: (1) its legal force or status (2) who are the subjects or rights-holders; (3) the scope of the right; (4) whether it includes not only negative prohibitions but also positive obligations to protect against third-party threats; (5) the object of the right, or who is bound by it; and (6) permissible limits on the right. The chapter gives examples of significant variation in the approach to these elements among legal systems around the world and demonstrates how, by collectively constituting the general structure of the right to free speech, they define the nature and contours of any particular right in a given system.

Keywords: free speech, legal personhood, positive duties, horizontal effect, proportionality

Suggested Citation

Gardbaum, Stephen, The Structure of a Free Speech Right (October 19, 2020). The Oxford Handbook on Freedom of Speech (Stone & Schauer, eds., Forthcoming), UCLA School of Law, Public Law Research Paper No. 20-32, Available at SSRN: https://ssrn.com/abstract=3715174

Stephen Gardbaum (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

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