Free Speech Theory Research Articles

A Marxist critique of the metaphor of the marketplace

ABSTRACT For the last century, the metaphor of the marketplace of ideas has dominated free speech theory. But this metaphor is both undemocratic and hegemonic. Marketplace-based defenses of free speech commodify speech. Speech, according to this metaphor, is valuable for what it can be traded for – influence in the marketplace of ideas. However, good speech cannot respond to bad speech if it is devalued in the marketplace because of the speaker’s position within the marketplace. This project explores the metaphor of the marketplace of ideas and argues that it must be rejected because of its commodification of speech. If identity is property, as Cindy Griffin argues, then the marketplace perpetuates a system in which speakers are robbed, not of the objects of their work, but of their very being. I argue that the marketplace metaphor commodifies speech, and is therefore, dangerous to democracy. Drawing on a Marxist understanding of reification shows how the marketplace metaphor is ultimately alienating and renders certain speech by certain speakers less valuable.

Decentralized social networks and the future of free speech online

Decentralized social networks like Mastodon and BlueSky are trending topics that have drawn much attention and discussion in recent years. By devolving powers from the central node to the end users, decentralized social networks aim to cure existing pathologies on the centralized platforms and have been viewed by many as the future of the Internet. This article critically and systematically assesses the decentralization project's prospect for communications online. It uses normative theories of free speech to examine whether and how the decentralization design could facilitate users’ freedom of expression online. The analysis shows that both promises and pitfalls exist, highlighting the importance of value-based design in this area. Two most salient issues for the design of the decentralized networks are: how to balance the decentralization ideal with constant needs of centralization on the network, and how to empower users to make them truly capable of exercising their control. The article then uses some design examples, such as the shared blocklist and the opt-in search function, to illustrate the value considerations underlying the design choices. Some tentative proposals for law and policy interventions are offered to better facilitate the design of the new network. Rather than providing clear answers, the article seeks to map the value implications of the design choices, highlight the stakes, and point directions for future research.

Targeted speech directions in Singapore

ABSTRACT As public discourse moves online, Singapore’s Government has increasingly begun to regulate online speech via the use of Targeted Speech Directions, which are issued against statements or communications deemed to amount to fake news or foreign interference. This article maps the law on Targeted Speech Directions in Singapore, touching on three issues – the consistency of these Directions with constitutional theories of free speech, the extent of judicial oversight available and the applicable evidential rules in challenges brought to these Directions – which bear materially on how these Directions are used and their influence on the future Singaporean public discourse.

Liberty, Slavery, and Biography: The Hidden Shapes of Free Speech

AbstractThe first substantive theory of free speech as a secular political right was concocted by two anonymous London journalists, Thomas Gordon and John Trenchard, in their best-selling, endlessly reprinted newspaper column, Cato's Letters (1720–1723). Though its ideals became hugely influential, especially in the American colonies, Trenchard and Gordon's motives and the peculiar biases of their theory remain unexplored. John Locke's theorizing of personal liberty while accepting patriarchy and slavery has been much studied; that of Cato's Letters, a comparably significant text, not at all. Drawing on a wealth of newly discovered materials in British, Caribbean, and American archives, the author explores the telling roles of gender and especially race in early Anglophone ideals of free speech, connecting them to the lived experiences of Gordon, Trenchard, and their shadowy publisher, Elizée Dobrée. The article thus reframes our understanding of one of the most important Anglo-American political works of the eighteenth century, and exemplifies how to approach free speech historically, as both a theory and a practice. Freedom of expression does not simply arise from the lessening of “censorship” and restraint, nor is it ever equally accessible to all. Visibly and invisibly, like every kind of liberty, it always has a particular shape.

Weaponizing free speech protections in U.S. higher education: the ugly impact of assaultive speech on Black women students

First Amendment protections for blackface in U.S. higher education have for too long fostered hostile educational environments for Black women and other racially minoritized and marginalized communities. Institutions dedicated to inclusive learning environments can no longer ignore these abuses and have an opportunity and obligation to challenge and disrupt the protections long afforded to assaultive speech. However, overturning these problematic gendered-anti-Black racist narratives of interpreting caricatures of Black women's bodies with blackface and exaggerated body parts as harmless entertainment of means centering the voices, perspectives and lived truths of Black women. I use what I call an Intersectionality Discourse Analysis to analyze two subsequent federal court cases involving a white fraternity's ugly woman contest at a public U.S. university and free speech theory. In my recommendations I urge institutional leaders to take an unapologetic stance in sanctioning assaultive speech and to petition the courts to support their decision-making.

Law as Counterspeech

A growing body of work in free speech theory is interested in the nature of counterspeech, i.e. speech that aims to counteract the effects of harmful speech. Counterspeech is usually defined in opposition to legal responses to harmful speech, which try to prevent such speech from occurring in the first place. In this paper we challenge this way of carving up the conceptual terrain. Instead, we argue that our main classificatory division, in theorising responses to harmful speech, should be between pro-discursive and anti-discursive responses. Some legal responses to harmful speech, so we argue, make a positive discursive contribution in their own right. That is, legal restrictions on harmful speech can have a function that is importantly similar to speech that aims at countering the effects of harmful speech.

Freedom of speech: A relational defence

Much of the recent literature on freedom of speech has focused on the arguments for and against the regulation of certain kinds of speech. Discussions of hate speech and offensive speech, for example, abound in this literature, as do debates concerning the permissibility of pornography. Less attention has been paid, however, at least recently, to the normative foundations of freedom of speech where three classic justifications still prevail, based on the values of truth, autonomy and democracy. In this paper we argue, first, that none of these justifications meet all four intuitive desiderata for an adequate theory of free speech. We go on to sketch an original relational view of free speech, one which grounds its value in the recognition that speakers grant each other when engaging in speech practices, and its limits in the republican ideal of non-dominated co-exercisable liberty. We briefly illustrate the relational approach’s implications for the debate on hate speech regulation and for the response to fake news.

Reconciling Regulation with Scientific Autonomy in Dual-Use Research.

In debates over the regulation of communication related to dual-use research, the risks that such communication creates must be weighed against against the value of scientific autonomy. The censorship of such communication seems justifiable in certain cases, given the potentially catastrophic applications of some dual-use research. This conclusion however, gives rise to another kind of danger: that regulators will use overly simplistic cost-benefit analysis to rationalize excessive regulation of scientific research. In response to this, we show how institutional design principles and normative frameworks from free speech theory can be used to help extend the argument for regulating dangerous dual-use research beyond overly simplistic cost-benefit reasoning, but without reverting to an implausibly absolutist view of scientific autonomy.

Holmes's Other Metaphor

For nearly seventy-five years, the “marketplace of ideas” has been regarded as the central metaphor of Justice Oliver Wendell Holmes’s dissent in Abrams v. United States and of free speech theory in general. No other image has so captured the public imagination or generated such fierce academic argument. But there is another metaphor in Holmes’s dissent that may offer a better framework for understanding his view of free speech – the metaphor of the experiment. In this symposium essay marking the centenary of Abrams, I explore the implications of the experiment metaphor, explaining what Holmes might have meant by it and how it might complement and improve upon the metaphor of the market.

Cat got your tongue? Free speech, democracy and Australia’s ‘ag-gag’ laws

ABSTRACT In recent years Australian governments have proposed, and enacted, ‘ag-gag’ laws which extend the criminalisation of peaceful, non-violent activities such as trespass to deter animal protection advocates from obtaining information about animal welfare, information that is not obtainable in other ways and that contributes to public deliberation around an important policy issue. This article asks two questions. First, if a speaker engages in non-violent, peaceful, but illegal activities, such as trespass in order to obtain information that is important to democratic deliberation, can this be justified from the perspective of free speech theory? Answering this question in the affirmative, we then analyse the contours of proposed, and new provisions in Australian law designed to extend the criminalisation of such activities. We conclude that since the impact on freedom of speech of such provisions is excessive, governments should be mindful of their free speech obligations when considering, and enacting, such laws.

Free Speech, Rational Deliberation, and some Truths about Lies

Could “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech – promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should count as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also limit the state’s ability to control the way we emotionally experience ideas, beliefs, and even facts. It claims that like art, music, religious expression, and other forms of human communication that do not facilitate rational deliberation in their audiences, fake news can promote a form of expressive experiential autonomy. It can allow individuals to experience individual self-realization and identify formation and also form cultural connections with like-minded people, advancing social cohesion. Drawing on First Amendment theory and on the fields of cognitive and social psychology and political science, the Article views consumers of fake news not simply as uninformed, gullible rubes, but as individuals seeking to simultaneously distinguish themselves through individualization or self-identification and group association with a community of people with whom they share values. Understood in this way, the inquiry illustrates why the rational deliberation principle is incomplete because it does not explain much of what we ought to recognize as “speech.” This more nuanced understanding of the way that fake news connects with much of its audience has implications for free speech theory, First Amendment doctrine, and policymaking options for addressing the potential harms of fake news. To be clear, this Article is not a defense of fake news or those who intentionally attempt to influence others’ behavior by spreading false facts disguised as legitimate news. Thus, the Article concludes by explaining that while fake news should always be covered by the First Amendment, it should not always be protected.

IN PRAISE OF EVIL THOUGHTS

AbstractFreedom of thought means freedom from social tyranny, the capacity to think for oneself, to encounter even shocking ideas without shrinking away from them. That aspiration is a core concern of the free speech tradition. It is not specifically concerned with law, but it explains some familiar aspects of the First Amendment law we actually have—aspects that the most prevalent theories of free speech fail to capture. It explains the prohibition of compelled speech, and can clarify the perennial puzzle of why freedom of speech extends to art and literature. It also tells us something about the limits of legal regulation, and about the ethical obligations of private actors.

Thoughts on a Thinker-Based Approach to Freedom Of Speech

While agreeing with Seana Shiffrin that any free speech theory must depend on assumptions about our need for free thinking, I am sceptical about her claim that her thinker-based approach provides the best explanation for freedom of speech. Her argument has some similarities with Mill’s argument from truth and with self-development theories, though it improves on the latter. But the thinker-based approach does not show why political discourse, broadly construed, is protected more strongly in all jurisdictions than gossip and sexually explicit speech. Nor does it explain why the ‘mass’ speech of corporations and the mailings of political parties and charities are fully protected by provisions such as the First Amendment. My article concludes with some reflections on the relationship of abstract political theory such as Shiffrin’s to constitutional law; abstract theory must inevitably make some compromises if it is fully to explain constitutional jurisprudence.

Colloquy with John Durham Peters at Yale University on freedom of speech

Challenges to free speech theory are very much present in public conversation around the world, inviting vigorous scholarly debate and making big headlines in the newspapers of some countries, such as the United States. This conversation with John D. Peters, from Yale University, tackles the main questions around the philosophy of freedom of expression. Even though the legal perspective underlies the entire discussion, the angle offered is that of a Media Studies scholar, with an exceptional background in history and philosophy of communication. The interview is organized in three sections. The first one touches upon some principles of the liberal tradition regarding freedom of speech. In the second section, Professor Peters gives some insights into recent cases that have challenged free speech principles: Charlie Hebdo’s cartoons, the riots at Berkeley where the free speech movement started, the ‘Safe Spaces’ controversy on U.S. Campuses, and Silicon Valley’s content moderation. In the final section, he elaborates on the future of the free speech principle.

The shape of free speech: rethinking liberal free speech theory

ABSTRACTNoting the apparent inconsistency in attitudes towards free speech with respect to anti-Semitism and Islamophobia in western liberal democracies, this article works through the problem of inconsistency within liberal free speech theory, arguing that this symptomatically reveals an aporia that exposes the inability of liberal free speech theory to account for the ways in which free speech actually operates in liberal social orders. Liberal free speech theory conceptualizes liberty as smooth, continuous, homogeneous, indivisible and extendable without interruption until it reaches the outer limits. This makes it difficult for liberal free speech theory to account for restrictions that lie within those outer limits, and therefore for the ways in which restraints, restrictions and closures are always already at work within the lived experience of liberty, for it is these – and the inconsistencies they give rise to – that give freedom its particular texture and timbre in any given social and cultural context. The article concludes with an alternative ‘liquid’ theory of free speech, which accounts for the ‘shaping’ of liberty by social forces, culture and institutional practices.Abbreviations: UK: United Kingdom; MP: Member of Parliament.

‘Irreligious’ Cartoons and Freedom of Expression: A Critical Reassessment

In a recent article, Neville Cox argued that there is no right under international human rights law to publish ‘irreligious’ cartoons. Secondly, he questioned the very idea of such a right. Finally, he argued that, given the fact that there is no international right to publish irreligious cartoons and that the message spread by the cartoons was akin to hate speech, the ‘real’ reason for the international solidarity with Charlie Hebdo may have been ‘Islamophobia’. In this article, I will argue that Cox may be right in holding that there is no international right to ‘irreligious speech’, but I will question his reasoning. Secondly, I will argue that, under robust free speech theory, arguments in favour of suppressing anti-religious speech are highly questionable. Finally, and irrespective of the two previous points, I will argue that Cox’s conclusion is mere speculation, and there are no compelling arguments for adhering to it.

Does Intolerance Dampen Dissent? Macro-Tolerance and Protest in American Metropolitan Areas

Political tolerance has long been regarded as one of the most important democratic values because intolerant political cultures are believed to foster conformity and inhibit dissent. Although widely endorsed, this theory has rarely been investigated. Using multilevel regression with poststratification to measure levels of macro-tolerance in U.S. metropolitan areas, and event data to measure rates of protest, we test whether cultures of intolerance do indeed inhibit public expressions of dissent. We find that they do: levels of macro-tolerance are positively and strongly associated with higher rates of protest in American metropolitan areas. Our findings have implications for the study of political tolerance, for normative theories of free speech and other civil liberties, and for scholarship on protest and collective action.

Search Engines, Free Speech Coverage, and the Limits of Analogical Reasoning

In this Essay we investigate whether new modes of online communication ought to be covered by free speech principles. The types of communications we’re interested in are the outputs of programs that synthesize, organize, and transmit third-party communications to users. Search engine results are the most familiar and ubiquitous example of this. Another notable example is Trending News on Facebook. While we are interested in the immediate policy implications of this classificatory question, this Essay also puts forth a broader methodological critique. More specifically, we critique the analogical reasoning – which likens search engine results to editorial publications – that has dominated First Amendment case law and legal scholarship around this issue to date. We argue that this analogy is unpersuasive on its own terms, and that proponents of this analogy have failed to properly engage with rival analogical interpretations of the function of search engines that favor the opposite conclusion (i.e., that search engine results should not receive free speech coverage). We argue that this is indicative of shortcomings with analogical methods in debates over free speech coverage more generally. When important and novel forms of communicative practice are being considered, courts should not use tenuous analogical inferences to extend First Amendment protections beyond their established scope. Here we present, for the first time in this literature, a taxonomy of different types of analogical reasoning, in order to offer a more precise account of the specific forms of analogical reasoning that we’re objecting to. We then explain the comparative merits of addressing question of coverage in a way that primarily relies on reference to three normative theories of free speech: democratic participation, epistemic, and thinker-based. We argue that under each of these theories – contrary to the currently prevailing view in both the cases and existing scholarship – only a subset of search engine results and similar communication should in fact be afforded free speech coverage.

Free Speech for All: A Justice-Infused Theory of Speech for the Digital Ecosystem

This doctoral dissertation identifies the incongruence between the theoretical framework offered by traditional liberal political theory and classic free speech theory, on the one hand, and the realities of digital networks comprised of multiple speakers and multiple censors/regulators (with potential overlaps between the two), on the other hand. Particular emphasis is put on the following question: How does technological change mediate our understanding of in of expression? The research holds that expressive capacity has become a defining element of freedom in the digital ecosystem, invoking an understanding of freedom of expression as a right incorporating both a capacity and a liberty aspect. It then maps the various theoretical, legal and technological mechanisms, through which capacity is amplified, but liberty is weakened in the digital ecosystem, and draws conclusions as to the proper moral matrix of rights and duties applicable to the power-relations between Internet users and online intermediaries. The dissertation then suggests a path for translating these claims from morality into legal and policy principles, by sketching an analytical-constitutional framework for dealing with multi-dimensional speech-related conflicts. The dissertation is aimed to provide conceptual tools for understanding the transformations in the meaning of freedom, the complexities of speech-related conflicts in the digital environment, and the possible ways for dealing with such conflicts. In order to do so, the dissertation integrates insights from the philosophy of technology, liberal political theory, free speech theory and First Amendment jurisprudence, and empirical research conducted in the social sciences, in an interdisciplinary mode of analysis.

An Institutional Theory of Free Speech

The paper provides a theory of freedom of speech based on the new institutional political economy. Through politics individuals seek to achieve collectively what they would not be able to achieve individually, forming institutions of social control. But institutions have costs which need to be discovered. Freedom of speech facilitates information discovery about the subjective costs of social institutions. Those costs are not only discovered but created through the acts of speech and expression. The paper develops this institutional approach by contrasting and complimenting against the three dominant theories of free speech: Mill’s marketplace of ideas theory, Meiklejohn’s democracy theory, and Baker’s liberty theory. The paper then shows how the institutional theory can be meaningfully applied to two common questions in freedom of speech debates: that of protest on publicly accessible property, and the relationship between freedom of speech and political correctness.