Assuming Free Speech

Abstract

Free speech is commonly seen in negative terms as a limitation on government action that restricts speech. Although there have long been arguments that government also has an obligation to act in support of free speech – in part because common free speech rationales appear to involve more than a negative right – much free speech law adopts a negative understanding. This article examines assumptions within negative approaches to free speech and finds little reason to support the idea that free speech exists primarily when the state is not directly limiting speech. On this analysis, arguments about free speech should be reframed. New questions would emerge about what legal limitations and obligations should be applied in the name of free speech and through what methods. The limited recognition given to positive free speech by, for example, the European Court of Human Rights would warrant further development. Free speech would have important positive and negative aspects.