Value Of Free Speech Research Articles

Is There an Independent Principle of Free Speech?

The theory of the Free Speech Principle proposes that freedom of speech should be treated as an independent principle different from the general principle of freedom. This paper questions the validity of that proposition through examining the main assumptions of the Free Speech Principle. It finds that there is not an independent Principle of Free Speech for at least three reasons. (1) The philosophical foundation, moral justification, intrinsic value and legal limitations of free speech are not fundamentally different than those of freedom in general. (2) Perceptions on the utility of free speech alone may not be sufficient for assigning values, rules, limits and laws of free speech different from those of other forms of freedom. (3) It is unjustified, invalid and misleading to propose that free speech is or should be protected despite its harms. The paper concludes that freedom may not be divided into, nor may it be governed by different and separate principles based on its external forms, manifestations and applications.

Hate Crime Laws: Dangerous and Divisive

The great promise of American law is Equal Protection: everyone is equal before the law. Colorado's Ethnic Intimidation statute runs contrary to this promise, by creating preferred classes of victims. Proposed hate crimes laws would make the problem even worse. Different groups should not be contending for special status in our criminal law. Identity politics strikes at the heart of the American motto of e pluribus unum, and encourages people to think of themselves as members of particular groups -- rather than as, most of all, Americans first. Laws based on identity politics lead to skewed prioritization of law enforcement resources, and impinge on values of free speech, which includes the freedom to hold and express the most odious ideas. Until Colorado's statute is repealed, it should be improved by stronger penalties for the creation of hoaxes. Language: en

Academic Freedom at the Crossroads in the United States

Academic freedom in the United States has long been associated with the values inherent in the First Amendment free-speech clause of the US Constitution. In recent years a deterioration of academic freedom has occurred in higher education institutions in the United States. Exacerbating this trend is that US courts, longstanding protectors of the value of free speech, have whittled away some of the traditional academic freedom protection afforded to faculty at public colleges and universities. Several factors have contributed to a general decline in protection of academic freedom, such as the events of 9/11, the mis-application of the business model for higher education, and recent US Court decisions regarding academic freedom. These factors threaten the future viability of academic freedom and the advantages to higher education and society.

Dividing 'Citizens United': The Case v. The Controversy

In the five years since "Citizens United", that notorious and much-misunderstood Supreme Court decision has become more than just a case: it has become a symbol, a rallying cry. For some, it is an emblem of free speech values at their best. For others, it is a symptom of a deep sickness in our body politic. But we should not forget that it was a case first, with a plaintiff who wanted to distribute a political movie and was told "no."As a case dealing with a particular controversy over a proposed publication, I believe "Citizens United" was rightly decided, for the reasons I discuss in Part I, even if it was resolved in a way that was symptomatic of judicial overreach all too common on the current Court. But as a symbol and a symptom, "Citizens United" has broader significance reflected in the Court's eventual opinion. It represents a bizarrely cramped and naive vision of political corruption and improper influence in the electoral process — one that has become characteristic of Roberts Court campaign finance law. And, more broadly, it is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism, in which the regulation of virtually all forms of speech and all kinds of speakers is treated with the same heavy dose of judicial skepticism, with exceptions perversely calculated to expose particularly vulnerable and valuable sorts of expression to unconvincingly justified suppression. It is those trends, rather than the outcome of "Citizens United" as applied to the facts before the Court, that need to be revisited. Part II provides a first cut at rethinking campaign finance law. This effort is informed by the recognition that there are few if any easy answers in this field. The First Amendment requires hard choices about seriously conflicting yet equally foundational constitutional values: democracy, liberty, equality. Each one of these values is contested; no single value or theory can or should reign supreme. But, as I strive to show, the Supreme Court has started to privilege — throughout First Amendment law — an overly skeptical and distrustful understanding of democracy and a too rigid and mechanical approach to liberty, leaving equality increasingly out of the picture. I believe the Court would do well to rethink that approach.

Critiques of the pursuit of truth as a justificatory theory of free speech

The justificatory theory of the pursuit of truth claims that free speech should be protected despite its potential harmful consequences because it facilitates the marketplace of ideas for pursuing truth. This article is a critical examination of this theory. It finds that: 1) the theory does not distinguish between the apparent utility of free speech and the intrinsic value of free speech as a form of freedom; 2) it does not consider free speech as an end in itself. By considering free speech as a means, it implies that whatever external utility justifies the protection of free speech can also justify its restriction; 3) the theory is partially based on an illusionary marketplace of ideas without realising the potential deficiency, inefficiency, and inequality in expressive opportunities in any possible marketplace of ideas. Therefore, the theory cannot provide a coherent framework for both the justification and the limit of free speech.

The Hate Speech Diversion

Hate mongers have found it strategically useful to present themselves as defenders of free speech. The shift from advocate of hate to defender of free speech fits well with the hate monger's self-understanding as a victim of state oppression and a defender of Western values against multiculturalism. More often, though, the opposition to hate speech regulation has a principled basis. There are many committed libertarians who regard hate speech as odious but are nevertheless prepared to defend the right of others to engage in it. Their opposition to the restriction of hate speech rests on a commitment to individual liberty sand a concern about the reach of state power. While I think the civil position is mistaken, it is not without merit. What is perplexing though is the extraordinary energy that these advocates of free speech put into the fight against hate speech regulation. They seem convinced that the integrity of the free speech edifice depends on holding the line here. Yet they seem indifferent to the more significant ways in which freedom of expression is being eroded in Western democracies. Whether by design or not, the obsessive opposition to hate speech regulation diverts our attention away from more fundamental free speech issues concerning the character and structure of public disclosure, and more particularly the domination of public disclosure by commercial messages and the advertising form. But, of course, these are not issues that can be addressed by the courts, except in indirect ways, and that may partly explain the lack of attention they receive.In recent years the critics of hate speech regulation in Canada have focused on human rights codes restrictions. Some critics are opposed not to hate speech regulation per se but only to this form of restriction. Their concern is that the human rights process is poorly suited to the regulation of hate speech. I count myself among this group. Other critics are opposed to any form of hate speech restriction and human rights code regulation is simply the battleground on which they have chosen to conduct their fight. But there is another dimension to the attack on human rights code regulation of hate speech. Much of the recent criticism of such regulation seems designed to undermine the entire human rights system. In their criticism of this regulation, they spend more time talking about the corruption and incompetence of human rights institutions than about the value of free speech. The logic of their (unfounded) claims of corruption is that these institutions have no legitimate role and should be abolished. Their claims are rooted in a more general libertarian view that state power is inherently oppressive and corrupt.In this chapter, I will say something about the current state of hate speech regulation in Canada, before looking more closely at the attack on human rights laws and institutions, and the resonance these attacks have had in the mainstream media.

The Defamation Injunction Meets the Prior Restraint Doctrine

In Near v. Minnesota, the Supreme Court added the injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill. A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation” turns out to be formidable. This article examines the Sullivan v. New York Times privileges in defamation, their tension between truth and falsity, and their limitations on compensatory and punitive damages. It tests the injunction against damages by examining several Equitable doctrines: the inadequacy prerequisite-irreparable injury rule, the injunction as preventive relief, the temporary restraining order, the preliminary injunction, the injunction bond, the juryless injunction trial, the task of drafting an injunction to avoids vagueness and over-breadth, the use of motions to modify-dissolve an injunction, and the declaratory judgment, and contempt, compensatory, coercive, or criminal, including the collateral bar rule. It weighs important prior restraint scholarship, including Professor Emerson’s and Professor Blasi’s. The administration of the prior restraint doctrines has expanded its operation beyond the policy reasons that gave it birth. This article concludes that the differences between damages and an injunction don’t warrant different treatment. In Balboa Island VillageInn v. Lemen, the California Supreme Court approved a targeted injunction that forbids a defendant from repeating proved defamation. Influential scholars beginning with Roscoe Pound and including more recently Professors Redish, Jeffries, Schauer, and Ardia have eroded the prior restraint doctrines’ reasoning and application. The procedure leading to an injunction can be augmented by requiring prior notice, adversary adjudication, and narrow drafting. A properly adjudicated and drafted injunction that specifically forbids defendant’s defamation will prevent harmful torts without threatening free-speech values. The article closes by asking for abolition of the Maxim and suspension or qualification of the prior restraint doctrine for defamation.

“Much Dispute and Wonderful Contentions”: Free-Speech Values in The Book of Mormon

Although some scholars have called for religious speech in the public square to be curtailed in ways other expression is not, a careful examination of Mormon scripture demonstrates broad and deep support for the values that animate secular free expression. If religious speech enables the search for truth, facilitates democracy, provides a safety valve, promotes tolerance, and fosters autonomy, then the argument for restricting religious speech is undermined. The Book of Mormon teaches that while not all speech is of equal value, both secular and religious free expression deserve legal protection and respect.

The Logic of Indirect Insulting in Legal Discussions: A Speech Act Perspective

In discussions about the accusation of insulting, there is sometimes a disagreement space because the values underlying the protection against insulting have to be balanced against the value of free speech. Legal discussions about insulting often focus on the problems concerning this weighing and balancing of principles. But apart from the possible weighing and balancing problems, the legal qualification of insulting is problematic because the statutory language on this topic is vague and because language users can opt for indirect insulting. As a result there is room for achieving certain communicative and interactional effects by means of argumentative strategies such as qualifying an insult as part of a public debate, or by means of linguistic choices. Certain acts count as an insult and others do not, while the others can have the same interactional effect of being insulted. This aspect of insulting has received little attention in legal research on this subject and it is my aim in this contribution to solve some of these problems by providing a theoretical framework to describe these argumentative strategies and linguistic choices. In my opinion these argumentative strategies and linguistic choices can be analyzed by making use of insights from speech act theory. In this paper I present some analytical tools for analyzing indirect insulting within the framework of this theory. First, I clarify the communicative (illocutionary) and the interactional (perlocutionary) aspects of the speech act indirect insulting. Second, I analyze how the interactional effects can be analyzed as implicatures. These analytical tools are necessary for the reconstruction of argumentation for and against the standpoint that someone insulted someone else. I will start with an analysis of article 137c of the Dutch Criminal code: what counts as an insult according to Dutch law?

'What is that Honor?': Re-Thinking Free Speech in the 'Stolen Valor' Case

This Article addresses the recent emotionally-charged Supreme Court case of United States v. Alvarez. In Alvarez, the Court struck down on free speech grounds the Stolen Valor Act, which, in effect, prohibited lying claims to have been personally awarded particular military medals. The Article first presents four distinctive reasons why, if possible, the Court should have avoided deciding this case on free speech grounds. The Article then argues that if the Court was nevertheless somehow bound to reach the free speech merits, the same four reasons presented above should have persuaded the Court to have upheld the statute. Among the relevant considerations are an appropriate degree of judicial modesty under the particular circumstances, and the only minimal degree to which the logic and value of free speech were realistically implicated in the case.

Religious Freedom, Free Speech and Equality: Conflict or Cohesion?

There have recently been a number of high profile political incidents, and legal cases, that raise questions about hate speech. At the same time, the tensions, and perceived conflicts, between religion and sexuality have become controversial topics. This paper considers the relationship between religious freedom, free speech and equality through an analysis of recent case law in Great Britain, Canada and the United States. The paper starts with a discussion of how conflicts between these values arise in areas such as hate speech and explores the differences between the European and US approach to this issue. In Council of Europe member states there is an increasing use of the criminal law to regulate hate speech. This paper argues that criminalisation of hate speech poses a distinct risk to the values of free speech and proposes alternative non-legal responses such as a greater use of cultural policy. The paper also explores a range of cases where the religion and sexual orientation conflict has arisen in areas such as the workplace. An analysis of these cases suggests that although there is no perfect resolution of this issue, it is possible to develop a set of principles that encourage a balance between the values of religious freedom, free speech and equality even in difficult situations where there is a conflict between religion and sexuality. The paper concludes with some practical recommendations for managing the tensions or conflicts between religious freedom, free speech and equality in liberal democracies.

Lying and Freedom of Speech

800x600 Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:Calibri,sans-serif; mso-bidi-font-family:Arial;} The falsity of the claim that lies are inherently without direct and substantial free speech value is the main thesis of this Article. Lies may contribute directly and substantially to the basic values or purposes underlying freedom of speech in general. These include, but are not limited to, autonomy, personal development, truth, privacy, tolerance, respect, dignity, and equality. Some lies may promote free speech values in such a way as to deserve free speech protection. And this is quite apart from any breathing space that protecting some false statement-if not some lies-might provide for good faith speakers. Part II of this Article examines a recent, intriguing example of an alleged lie in a legal context drawn from a variety of related false, fraudulent, misleading, deceptive, or perjurious statements. As it turns out, it is an understandable wish to be able to analytically place all lies somewhere on a simple continuum, but that is doomed. As a concept, lying is a matter of astounding subtlety and complexity. It is probably more accurate to think of lies, collectively, as occupying positions on a nearly infinite gradient. That gradient, in turn, constitutes only a portion of a further, nearly infinite gradient necessary to locate the full variety of lies, false statements, fraudulent statements, misleading statements, deceptive statements, and perjurious or other related sorts of statements. Part III of this Article provides background to identify some general alternative perspectives on lying, and to add rigor and precision to the discussion. First, the work of some of the most influential writers on the subject of lying are sampled, including the classic historical discussions of the nature and value-or disvalue-of lying. Second, attention is devoted specifically to the influential work of philosopher Immanuel Kant. Finally, some of the very careful analytical and normative work of contemporary writers is reviewed, including philosophers, law professors, and social scientists-as well as some current disputes over the very definition and meaning of lying. Comments in this section apply the ideas of these different thinkers on the fugitive slave and Shoah cases described below. Part IV is the emotional center of the Article. It recounts clear instances of intentional lying to both private parties and government officials in two dramatic and extreme, though clearly important, historical contexts. The first involves intentional lies in the context of attempts to re-capture and return escaped fugitive slaves throughout the period ending with the American Civil War (fugitive slave cases). The second involves intentional lies, mainly to Nazi governmental or military officials, in the context of attempts to hide or otherwise protect mostly Jewish citizens from being sent to concentration and extermination camps over the course of the Second World War (Shoah cases). Part V discusses the basic values and purposes thought to be promoted by, and to thereby justify, a regime of freedom of speech. Specifically, the discussion addresses whether a number of the lies, on any familiar definition, told in the fugitive slave and Shoah cases could quite reasonably be described as distinctly advancing one or more of the basic free speech values and purposes. Indeed, in many of the examples considered, this is consistently the case. This Article concludes that lying in such cases, taken individually or collectively, often substantially advances several of the basic free speech values. The general conclusion will also apply to closer calls in related, but less extreme contexts. In summary, this Article will establish that some intentional lies, in themselves, are worthy of protection on free speech grounds.

Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society

This essay argues that digital technologies alter the social conditions of speech and therefore should change the focus of free speech theory from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning - making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual's ability to participate in the production and distribution of culture. The essay argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet. By changing the social conditions of speech, digital technologies lead to new social conflicts over the ownership and control of informational capital. The free speech principle is the battleground over many of these conflicts. For example, media companies have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. The digital age greatly expands the possibilities for individual participation in the growth and spread of culture, and thus greatly expands the possibilities for the realization of a truly democratic culture. But the same technologies also produce new methods of control that can limit democratic cultural participation. Therefore, free speech values - interactivity, mass participation, and the ability to modify and transform culture - must be protected through technological design and through administrative and legislative regulation of technology, as well as through the more traditional method of judicial creation and recognition of constitutional rights. Increasingly, freedom of speech will depend on the design of the technological infrastructure that supports the system of free expression and secures widespread democratic participation. Institutional limitations of courts will prevent them from reaching the most important questions about how that infrastructure is designed and implemented. Safeguarding freedom of speech will increasingly fall to legislatures, administrative agencies, and technologists.

Free Speech, Terrorism, and European Security: Defining and Defending the Political Community

In this paper I examine the impact that the struggle against terror has had on free speech protections in three European states. Specifically, I argue that prosecutors have overbroadly interpreted and expanded the definition of laws designed to target individuals who provide material support to terrorists. As a result, some prosecutions undertaken by European states threaten to undermine the core democratic value of free speech. By analyzing specific cases, I explore how some liberal democratic states have chosen to navigate the tension between security and liberty that Hannah Arendt referred to as the “crisis of authority.” Although I discuss each state’s relevant legislation, my primary focus is to draw distinctions and comparisons between the three countries based on recent cases that attempt to criminalize speech. This approach will allow me to assess the pulse of free speech in several democratic states that face significant terrorism threats.

Preliminary Remarks on Personal Use and Freedom of Speech

This discussion-paper is part of a larger project in which I explore ways contemporary forms of enforcing copyright law through intermediaries, or gatekeepers, affect free speech values that may be implicated by personal and non-commercial uses of copyrighted content. The sole focus of this essay is the extent to which personal use of copyrighted content is related to free speech values. With the advent of digital technologies and their undeniable impact on copyright interests, content owners have turned to alternative methods of copyright enforcement sidestepping legal copyright mechanisms and doctrines. Some of these alternative mechanisms involve enforcing copyright interests indirectly, through technological intermediaries, with varying degrees of legal backing. This form of enforcement has become so significant that “the regulation of intermediaries can conceivably be regarded as a new objective of intellectual property law”. Sometimes, indirect enforcement proceeds by exposing intermediary entities to civil liability for infringement by end-users. For example, by subjecting to liability online services that facilitate individual uses, secondary liability rules induce these services to encode monitoring mechanisms or design technologies to curb uses that may or may not be infringing. In the process, legal gatekeeping regimes are established where the task of policing infringing behavior is delegated to these intermediaries. In other cases, intermediaries and copyright owners set up private gatekeeping relations. For instance, today we see a worldwide trend to enlist conduits for internet access (Internet Service Providers or ISPs) to monitor, filter and generally police individual users believed to be illegally filesharing. As direct enforcement against users becomes costly in a digital context, the responsibility for copyright enforcement is delegated to those technologies designed to enable expressive activity. However, because risk-averse intermediaries do not capture the full value of the online content they control, they might be induced to over-enforce copyright interests, adversely affecting end-users’ speech interests. While some consequences of overenforcement may clearly register as affronts to free speech values (for instance, ISP’s cutting off internet access to clients for copyright infringement), some potentially affected activities are not immediately seen as covered by freedom of speech. In particular, indirect enforcement may affect individual activities that occur within a personal sphere of non-commercial uses that are part of what people expect to do with digital information goods. But because these personal uses may not implicate new creative expression, engagement in political speech, manipulation of digital works or communication of ideas to the public, they do not necessarily “have a facial claim to be considered with reference to the reasons underlying” freedom of speech. Through an evaluation of First Amendment theory and doctrine, this discussion essay considers free speech values plausibly implicated by personal non-commercial uses. After arguing that the First Amendment is implicated in such uses, further research will consider modes of contemporary copyright indirect enforcement and their potential impact on personal uses. Since this paper reflects the initial stages of a larger project, it intends to identify further research avenues rather than final conclusions. From the reader I would greatly appreciate criticism and help on the overarching structure and goals of the project and on the specific arguments made in its constituent parts.

Is There a Right not to be Offended in One’s Religious Beliefs?

The paper scrutinizes the normative claim that the legal right to freedom of religion requires respect for the religious convictions of believers when expressing oneself in public; or, put differently, the claim that there is a right not to be offended in one’s religious beliefs by the public expression of the views of others. This claim has been endorsed by the European Court of Human Rights in its judicial reasoning and is popular with many courts in Europe when reviewing criminal legislation that prohibits blasphemy, religious hate speech, or the disparaging of religious doctrines. The claim, if true, justifies the position that a liberal state may sanction or prevent the public expression of views for the reason that they offend, or are likely to cause offense to, religious convictions. On the European conception of rights, the putative right not to be offended conflicts with, and should be balanced against, the right to freedom of expression. Challenging the European conception of rights, the paper argues that, on the proper understanding of the normative role of rights in political morality and of the value of free speech, the claim that there is a right not to be offended in one's religious beliefs is unfounded.

Le Monde, French Secular Republicanism and `The Mohammed Cartoons Affair'

/ This article explores how France's leading newspaper, Le Monde , `re-presented', or presented anew, French secular republican ideology and the right of free expression at the height of the `affaire des caricatures de Mahomet' (the Mohammed cartoons affair). This global crisis, which was spawned by the publication of cartoons of the Prophet Mohammed by the Danish newspaper Jyllands-Posten, took on a specific French coloration when French newspapers republished the cartoons and added their own caricatures to the lot. It was found that Le Monde used the crisis to restate French free speech values, and placed the controversy squarely within the framework of French secular republicanism where the right to blaspheme and offend is sacrosanct.

Free speech or equal respect?

This article looks at liberalism as a political tradition encompassing competing and, at times, incommensurable values. It looks in particular at the potential conflict between the values of free speech and equal respect. Both of these are foundational values for liberalism, in the sense that they arise as normative ideals from the very inception of the liberal tradition itself. Yet from the perspective of this tradition, it is by no means clear which of these values should be prioritized in those instances where they come into conflict. This article insists that the only way these two values can be meaningfully weighed against each other is if their competition can be understood within the broader framework of liberalism and democracy. Within this broader framework it is possible to find criteria which enable us to choose between these values in a non-circular manner — i.e. in ways which do not already presuppose a commitment to the value we wish to support.

Limits and loopholes: the quest for money, free speech, and fair elections

This title comes from the authors of Legislative Labyrinth: Congress and Campaign Finance Reform. Elections, the basic mechanism of representative democracy, should be untainted by corruption and provide a platform for free speech. But running for office takes money - a lot of it, usually - which means campaign finance has become a pitched battle over the fundamental political values of free speech versus fair elections. With insiders' perspectives, Farrar-Myers and Dwyre tell the story of what it took to pass campaign finance legislation, provide analysis of the subsequent court action, and explore the regulatory and electoral outcomes of reform efforts. Limits and Loopholes is a story about incremental policymaking and inter-branch struggle, about institutional design and unintended consequences, about the influence of interest groups and the media, and about the health of our representative democracy. Bringing together discussions of core values and the policymaking process, this book serves as an excellent case study that traces an issue from inception, through legislation and litigation, and finally to implementation.

Free Speech Meets the Publicity Tort: Transformative Use Analysis in Right of Publicity Law

The intersection of intellectual property law and First Amendment concerns has become increasingly contested. The right of publicity has proven particularly difficult to reconcile with free speech values. Recently, some courts have begun importing a “transformative use” approach from copyright law to reconcile tensions between publicity rights and free expression. This article analyzes the problems with the transformative use doctrine and suggests the outlines of an alternative approach.