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Freedom of Speech and Its Limits PDF

237 Pages·1999·37.515 MB·English
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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 Published by Kluwer Academic Publishers, P.O. Box 17,3300 AA Dordrecht, The Netherlands. Sold and distributed in North, Central and South America by Kluwer Academic Publishers, 101 Philip Drive, Norwell, MA 02061, U.S.A. In all other countries, sold and distributed by Kluwer Academic Publishers, P.O. Box 322, 3300 AH Dordrecht, The Netherlands. Printed on acid-free paper All Rights Reserved © 1999 Kluwer Academic Publishers Softcover reprint of the hardcover 1s t edition 1999 No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owner 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.

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