Understanding Speech Rights: Defensive and Empowering Approaches to the First Amendment

Abstract

This article draws on liberal democratic theory to provide a philosophical foundation for understanding the relationship between speech rights and democracy. Utilizing the work of key political theorists, such as Mill, Friedman, Hayek, Green, Dewey and Barber, I argue that two conflicting theories of speech rights coexist within liberal democratic thought. I demonstrate how legal interpretations of the First Amendment manifest and reinforce these theories, which I label ‘defensive’ and ‘empowering’. Analysis of two Supreme Court cases widely recognized as pivotal in determining print and broadcast speech regimes, Red Lion Broadcasting v. Federal Communications Commission (1969) and Miami Herald Publishing Co. v. Tornillo (1974), highlights the role these theories play in legal thought. I conclude by arguing that empowering speech rights offer the best foundation for democratic communication, and by proposing a set of legal principles capable of revitalizing the meaning and function of speech rights in the USA.