Theoretical Foundations

Theoretical Foundations

Drawing on the work of thinkers from various political, cultural and religious traditions, the Module provides resources that explore why freedom of expression and information matters. It distinguishes between the main theories underpinning the protection of free speech and the rejection of censorship, and links these philosophical arguments to more recent international political developments.

6 items found, showing 1 - 6
Author: Richard Danbury
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Danbury explores the frequent tension between the statutory universality of human rights, in this case free speech on one hand, and the challenges to such assertions on cultural grounds on the other. Danbury points to four reasons that free speech should be universal: 1) discussions about free speech and related questions in liberal democracies that frequently invoke references to democracy and the values of liberalism can lead to a relativist assumption that liberal arguments that defend free speech are more limited than is appropriate; 2) placing liberal theories of free speech in a wider context draws attention to the fact that arguments that exist for free speech can be severed from debates about wider aspects of political philosophy; 3) the fact that the free-speech theories described can be somewhat disengaged from their political context is of importance in a world of Internet communication where, given the prevalence, immediacy, and internationality of such communication, questions of the relativity of freedom of speech become acute; and 4) free speech theories provide an approach that can be overlooked to resolving dilemmas related to speech within liberal democracies.

Danbury, R. (2017). Where Should Speech Be Free? Placing Liberal Theories of Free Speech in a Wider Context. In M. Price & N. Stremlau (Eds.), Speech and Society in Turbulent Times: Freedom of Expression in Comparative Perspective (pp. 171-191). Cambridge: Cambridge University Press. doi:10.1017/9781316996850.011

Author: Jerome A. Barron
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"The press, long enshrined among our most highly cherished institutions, was thought a cornerstone of democracy when its name was boldly inscribed in the Bill of Rights. Freed from governmental restraint, initially by the first amendment and later by the fourteenth, the press was to stand majestically as the champion of new ideas and the watch dog against governmental abuse. Professor Barron finds this conception of the first amendment, perhaps realistic in the eighteenth century heyday of political pamphleteering, essentially romantic in an era marked by extraordinary technological developments in the communications industry. To make viable the time-honored "marketplace" theory, he argues for a twentieth century interpretation of the first amendment which will impose an affirmative responsibility on the monopoly newspaper to act as sounding board for new ideas and old grievances."

Barron, Jerome A. "Access to the Press. A New First Amendment Right." Harvard Law Review 80, no. 8 (1967): 1641-678. doi:10.2307/1339417.

Author: John Milton
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This is a polemical tract in defence of press freedoms, and free speech generally, on philosophical grounds.

Author: IACmHR
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In October 2000, following debates among different civil society organizations, and in support of the Office of the Special Rapporteur for Freedom of Expression, the Inter-American Commission on Human Rights approved the Declaration of Principles on Freedom of Expression. The Declaration constitutes a basic document for interpreting Article 13 of the American Convention on Human Rights. In light of the importance of these principles, the Commission also published an interpretation of the principles set forth in the Declaration.

OAS, IACmHR. Background and Interpretation of the Declaration of Principles. 108th regular period of sessions. 2-20 October 2000

Author: Wayne Batchis
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“Citizens United v. FEC has fundamentally reshaped American politics by enshrining into law a radical new conception of what it means to be a democratic participant. The Court strikes down, on freedom of speech grounds, a federal law prohibiting independent political expenditures by unions and corporations. Yet, throughout the approximately 180 pages of opinion, there is strikingly sparse discussion of just what “speech” is. Nor do any of the Justices adequately explore the rationale behind the phrase “corporate speech,” an arguably paradoxical syntactical combination rooted in the Court’s “freedom of expressive association” jurisprudence-a doctrine of relatively recent vintage. Justice Stevens’ passionate dissent is laced throughout with the concession that corporations themselves engage in “speech”-a term that, on its face, would seem to require a human “speaker.” Thus even the dissent implicitly accepts the default position that corporations are potentially eligible for protections clearly designed by the First Amendment’s framers for human beings. Legal academics and journalists of all stripes have likewise blithely accepted the conclusion that there is something called “corporate speech.” In doing so, the dissent and others who find the Citizens United decision troubling have unwittingly and unwisely ceded unnecessary ground. By reifying corporations and imbuing them with the sympathetic qualities of individual American citizens seeking to assert their fundamental First Amendment freedoms, the majority is able to craft an opinion that resembles constitutional common sense. In this article, I examine how the Court ultimately arrives at this destination. In the decades prior to Citizens United, the Court established that associating with others has a close nexus with the textual freedoms of speech and assembly, but the contours of the “right to associate” remained far from clear. I argue that the right to enhance individual expression through association gradually, and without acknowledgement, morphed into a right of the association itself I trace and critique this development, looking closely at Court precedent, the views of the Framers, and the core philosophical underpinnings of free speech. After Citizens United, the fiction of the “corporate speaker,” useful in other contexts, was inappropriately accorded First Amendment status. The result, I argue, is contrary to democratic and republican ideals-allowing corporations and other associations to become potent players in political contests intended for individual citizens.”

Batchis, Wayne. “Citizens United and the Paradox of “Corporate Speech”: From Freedom of Association to Freedom of the Association”. N.Y.U. Review of Law & Social Change 36(1) (2012): 5-55.

Author: IACtHR
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“[T]he Government of Costa Rica […] submitted to the Inter-American Court of Human Rights […] an advisory opinion request relating to the interpretation of Articles 13 [Freedom of thought and expression] and 29 [Restrictions Regarding Interpretation] of the American Convention on Human Rights […] as they affect the compulsory membership in an association prescribed by law for the practice of journalism […]. The request also sought the Court's interpretation relating to the compatibility of Law No. 4420 of September 22, 1969, Organic Law of the Colegio de Periodistas (Association of Journalists) of Costa Rica […], with the provisions of the aforementioned articles.”

IACtHR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism. Advisory Opinion OC-5/85. Series A, No. 5. 13 November 1985