Abstract
The present essay explores the essential meaning of freedom of speech in the context of contemporary constitutional democracy. In addressing the question of how free speech constitutional clause should be understood in an universe full of controversial cases, the study articulates three main propositions: 1. Freedom of speech is the right not to be prevented from speaking or not to be punished for speaking based on the alleged unacceptability of an idea (taken as incorrect, inappropriate, stupid, irrelevant, shocking, dangerous, etc.); 2. Freedom of speech grants protection no matter the content of the message because the exchange of ideas is valuable for reasons other than the substantive qualities of what is said; to be worthy of protection, speech does not need to be infallible, clever or polite, but only play an expressive role in the process of discussion; 3. Freedom of speech doesn’t collide with rights of others, especially in the case of assertive speech acts, that is, assertions of facts and values that the speaker sincerely believes to be true or correct; even when the content sounds outrageous, asserting something doesn’t imply violation of anyone’s right, but rather it means the exercise of one’s own right.
Highlights
The present essay explores the essential meaning of freedom of speech in the context of contemporary constitutional democracy
In addressing the question of how free speech constitutional clause should be understood in an universe full of controversial cases, the study articulates three main propositions: 1.Freedom of speech is the right not to be prevented from speaking or not to be punished for speaking based on the alleged unacceptability of an idea; 2
Freedom of speech grants protection no matter the content of the message because the exchange of ideas is valuable for reasons other than the substantive qualities of what is said; to be worthy of protection, speech does not need to be infallible, clever or polite, but only play an expressive role in the process of discussion; 3
Summary
In 1917, the United States got into the World War I. According to Alan Dershowitz, the false cry of fire in a crowded theater is probably the only legal analogy to receive the status of a popular argument in the United States. Schenck sincerely expressed political ideas about the war, ideas that are true in the perspective of the speaker’s mind, and as the United States Supreme Court came to reaffirm in Falwell versus Hustler, “the First Amendment does not recognize such a thing as a false idea”. Schenck sincerely expressed political ideas about the war, ideas that are true in the perspective of the speaker’s mind, and as the United States Supreme Court came to reaffirm in Falwell versus Hustler, “the First Amendment does not recognize such a thing as a false idea”15 For these reasons, Dershowitz thinks Holmes analogy in the Schenck case is inappropriate and insulting. If there wasn’t a real fire, but the speaker thought there was (because of defective perception or amid a delirium crisis), it is hard to imagine he could be punished since shouting would only be a manner of speaking his mind, a way of speaking about something he believed to be true, it was not
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