Freedom of Speech and Its Limits

237 Pages·1999·37.515 MB·English

by  Wojciech Sadurski (auth.)

FREEDOM OF SPEECH AND ITS LIMITS
Law and Philosophy Library
VOLUME 38
Managing Editors
FRANCISCO J. LAPORTA, Department ofL aw,
Autonomous University ofM adrid, Spain
ALEKSANDER PECZENIK, Department ofL aw. University ofL und. Sweden
FREDERICK SCHAUER, John F. Kennedy School ofG overnment.
Harvard University. Cambridge. Mass .• U.S.A.
Former Managing Editors
AULIS AARNIO, MICHAEL D. BAYLESt, CONRAD D. JOHNSONt, ALAN MABE
Editorial Advisory Board
AULIS AARNIO, Research Institute for Social Sciences.
University ofTampere. Finland
ZENON BANKOWSKY. Centre for Criminology and the Social and Philosophical
Study ofL aw. University ofE dinburgh
PAOLO COMANDUCCI, University ofG enua. Italy
ERNESTO GARZ6N VALDES, Institut flir Politikwissenschaft.
Johannes Gutenberg Universitiit Mainz
JOHN KLEINIG. Department ofL aw. Police Science and Criminal
Justice Administration. John Jay College of Criminal Justice.
City University ofN ew York
NEIL MacCORMICK, Centre for Criminology and the Social and
Philosophical Study ofL aw. Faculty ofL aw. University ofE dinburgh
WQJCIECH SADURSKI, Faculty ofL aw. University ofS ydney
ROBERT S. SUMMERS, School ofL aw. Cornell University
CARL WELLMAN. Department of Philosophy. Washington University
WOJCIECH SADURSKI
The University ofS ydney.
Australia
FREEDOM OF SPEECH
AND ITS LIMITS
KLUWER ACADEMIC PUBLISHERS
DORDRECHT/BOSTON/LONDON
A C.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN-13: 978-1-4020-0281-6 e-ISBN-13: 978-94-010-9342-2
DOl: 10.1 007/978-94-010-9342-2
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TABLE OF CONTENTS
ACKNOWLEDGEMENTS vii·
PREFACE 1
CHAPTER 1:
JUSTIFICA nONS OF FREEDOM OF SPEECH 7
1 Search fQr Truth 8
2 Individ~al Autonomy 16
3 Democracy and Self-Government 20
4 Tolerance 31
CHAPTER 2:
SPEECH AND HARM 37
1 Levels of Scrutiny 37
2 Low and High Value Speech 41
3 Speech-Plus and Symbolic Action 43
4 Speech and Harm: A Case Study of R.A. V. 58
CHAPTER 3:
SPEECH AND EQUALITY 73
1 Equal Opportunity and Public Speech 73
2 Silencing 98
3 Asymmetry of Fighting Words III
CHAPTER 4:
DISCRIMINATION AND ILLOCUTIONARY ACTS 119
1 Illocutions and Perlocutions 119
2 Authority in Discriminatory Illocutions 123
CHAPTER 5:
VIEWPOINT NEUTRALITY AND ITS RATIONALES 135
1 Two Types of Neutrality 135
2 What is "A Viewpoint"? A Case Study of Rosenberger 140
3 Reasonableness and Viewpoint Regulations: A Case Study of
Lamb's Chapel 148
4 Rationales for Viewpoint Neutrality and Subject-Matter Neutrality 156
5 The ContentlViewpoint Distinction and the Level of Generality 162
6 Indirect Viewpoint Discrimination 167
7 Paternalism and Intolerance 173
vi
CHAPTER 6:
RACIAL VILIFICATION AND FREEDOM OF SPEECH 179
1 The Context of the Hate-Speech Controversy 179
2 The Contours of "Racial Vilification" 187
3 The Harms of Hate Speech 195
4 Liberalism and Prohibitions of Hate Speech 217
INDEX 225
ACKNOWLEDGEMENTS
This book owes its existence to a project which has produced several articles
and papers presented to various academic audiences over the past few years.
None of these papers are included here in their original form and, in the process
of writing and revising them, I have incurred intellectual debts to a number of
colleagues who have read and commented upon earlier versions of some parts
of this book: to Kathryn Abrams, James Allan, Tom Campbell, Susan Dwyer,
Alexandra George, Martin Krygier, Philip Pettit, Robert Post and Steven
Shiffrin. I also wish to thank the audiences at the Australian National
University, Catholic University of America, Cornell Law School, University of
Hong Kong, McGill University, the Netherlands Institute of Advanced Studies,
Saint Louis University, University of Tilburg, and University of Warsaw for
giving me opportunities to present some of the ideas which later found their
way into this book.
A more tangible support was provided to me by the Australian Research
Council and the Law Foundation of New South Wales in the form of research
grants for which I am very grateful. I also thank Madeleine Cullen for her
excellent work in producing the manuscript. I am very grateful to two
institutions with which I have been associated while preparing this book: the
Department of Jurisprudence at the University of Sydney Faculty of Law, of
which I am a member, and Cornell Law School where I was a Visiting Professor
in Spring Term 1995 and Fall Term 1996. Most of all, I wish to acknowledge
the encouragement of my wife Anna to whom this book is dedicated.
PREFACE
In authoritarian states, the discourse on freedom of speech, conducted by those
opposed to non-democratic governments, focuses on the core aspects of this
freedom: on a right to criticize the government, a right to advocate theories arid
ideologies contrary to government-imposed orthodoxy, a right to demand
institutional reforms, changes in politics, resignation of the incompetent and the
corrupt from positions of authority. The claims for freedom of speech focus on
those exercises of freedom that are most fundamental and most beneficial to
citizens - and which are denied to them by the government. But in a by-and
large democratic polity, where these fundamental benefits of freedom of speech
are generally enjoyed by the citizens, the public and scholarly discourse on
freedom of speech hovers about the peripheries of that freedom; the focus is on
its outer boundaries rather than at the central territory of freedom of speech.
Those borderline cases, in which people who are otherwise genuinely
committed to the core aspects of freedom of speech may sincerely disagree,
include pornography, racist hate speech and religious bigoted expressions,
defamation of politicians and of private persons, contempt of court, incitement
to violence, disclosure of military or commercial secrets, advertising of
merchandise such as alcohol or cigarettes or of services and entertainment such
as gambling and prostitution.
Even the most ardent, card-carrying civil libertarians are not committed to an
unconditional defence of a right to these types of public expressions, no matter
what. But an attempt to give a principled, rather than an ad-hoc, answer about
where to draw the line must fail unless it is based upon a rationale for having
freedom of speech in the first place, and upon an understanding of the structure
of the principle of freedom of speech. This rationale and this structure inform
our understanding of the very central aspects of freedom of speech. In this way,
a discussion about the peripheries is dependent on an understanding of the
central values of freedom of speech. And, vice versa, thinking about those
peripheries can illuminate our understanding of the very core of that freedom.
Of course, the distinction between those aspects of freedom of speech that
are central and those that are peripheral is itself contingent and often question
begging. It is contingent because as we move from the core to the peripheries,
the marginal benefit of a given type of expression decreases and the marginal
harm increases, and yet the judgment of harm is contingent upon a broader
moral theory about which people within a society may disagree. Be that as it
may, there is no doubt that much speech is harmful, and that harms resulting
from the exercise of freedom of speech may often prevail over its benefits -
just consider a catalogue of the types of speech mentioned in the first paragraph
of this Preface.
2 PREFACE
That is why even very committed liberals must accept that the principle of
freedom of speech, to use the words of a leading American constitutional
scholar, "need not sanctify the deliberate infliction of pain simply because the
vehicle used is verbal or symbolic rather than physical" and, therefore, that
sometimes law "may create remedies for the damage done with words so long
as these remedies display sufficient sensitivity to freedom of expression as
well". 1 The purpose of this book is to place the arguments about legal
restrictions of speech in a framework that facilitates legal reasoning about
rights, and thus displays "sufficient sensitivity to freedom of expression".
The content and the limits of the principle of freedom of speech must be
informed by a rationale for adopting the principle in the first place. I begin the
book with a discussion, in Chapter 1, of the main types of justification for
having this principle. There is no doubt that the pursuit of truth, individual
autonomy, democratic self-government and tolerance towards those with whom
we disagree, are important values, and that there is at least some kind of
relationship between a regime of freedom of speech and any of these important
values. But this is hardly the point. The point is rather to determine which of
these rationales justifies elevating the principle of freedom of speech to such a
level as to exempt it from the ordinary operation of a harm calculus which
instructs that those actions which produce more harm than good can be
legitimately prohibited by law. As Frederick Schauer noted, in arguably the
most important contemporary book on this subject in English-language
literature, when the principle of freedom of speech is adopted, "a limitation of
speech requires a stronger justification, or establishes a higher threshold, for
limitations of speech than for limitations of other forms of conduct".2 In a more
recent article, Schauer restated this point by formulating "the central question of
free speech theory" as: "what are the grounds, if any, for entrenching a principle
whose effect is to invalidate what would otherwise be a permissible form of
governmental action?,,3 This suggests that the burden on the defenders of this
principle is to produce not merely a rationale which connects a regime of
freedom of speech with an attractive value (or with a set of values), but to show
why this rationale justifies protecting free expression even if, at times, it may
bring about more bad than good.
\. Laurence H. Tribe, American Constitutional Law (Mineola, N.Y.: The Foundation Press,
1988, 2nd ed.), p. 856.
2. Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge
University Press, (982), p. 8.
3. Frederick Schauer, "Free Speech in a World of Private Power", in Freedom of
Communication ed. by Tom D. Campbell & Wojciech Sadurski (Aldershot: Dartmouth,
(994), pp. 1-2.