Конституционное право и политический реализм: негативная теория свободы слова

Abstract

Classic positive theories of freedom of speech explain enhanced constitutional defense of speech in terms of fundamental values served by expression (pursuit of truth, democratic governance or personal autonomy). Negative approach, which is the subject of this article, focuses not on the high social value of speech, but on the unique risks of its suppression. The dangers of repressive censorship mainly stem from personal interests of office-holders (legislators as well as law-enforcement officers) or from intolerance. Psychological reasons and the architecture of censorial decision-making turn speech into an especially fragile object of regulation. The idea underlying the constitutional status of freedom of speech is the distrust of government decision-making in speech regulation. Judicial review should pay close attention to the design of abridging laws and justifications provided for them. These laws should be worded clearly and should not allow for selective viewpoint censorship. The simplicity of negative approach and its political realism make it the most plausible theory for interpreting constitutional article on freedom of speech (expression).