Theoretical Foundations

The Panel on ‘Freedom of Speech: Theories and Foundations’ was convened by the Emory Law Journal as part of the 2015 Randolph W. Thrower Symposium on ‘The New Age of Communication: Freedom of Speech in the 21st Century’. The Panel comprised of Dean Erwin Chemerinsky, University of California-Irvine School of Law; Professor Frederick Schauer, University of Virginia School of Law; Professor Alexander Tsesis, Loyola University Chicago School of Law; and Professor Laura Weinrib, The University of Chicago Law School, and was moderated by Prof. Julie Seaman. The objective of the Symposium was to explicate and discuss the changing doctrine of free speech in the USA, particularly in light of decisions about the contours of speech rights such as McCutcheon v. Federal Election Commission, Snyder v. Phelps, and United States v. Alvarez. The Symposium emphasized on the impetus provided by these decisions and the approaches contained therein for a discourse on theories and foundations, current doctrines, as well as the future of free speech and expression. 

“Freedom of speech encompasses not only a right to express oneself but also a right to access information. This right is particularly pertinent to libraries, whose mission is often focused on enabling and expanding access to information. Libraries can support this activity with a theoretical background that draws upon the three predominant jurisprudential theories of freedom of speech: the marketplace of ideas, democratic ideals, and individual autonomy. In this article, each of these theories is explained and then applied to the library context, creating a starting place for further investigation and application of these judicial theories to information access.”

“This article considers whether the Internet has become so significant, for the provision of, and access to, information and in the formation of political community and associated questions of participation, that it requires further human rights protection beyond freedom of expression. In short, should Internet freedom be configured as a human right? The article begins by considering the ubiquity of the Internet and its significance. A wider historical view is then taken to understand Internet freedom in terms of its lineage and development from earlier debates over freedom of expression and the right to communicate, through to the recognition of the significance of an information society and the need for Internet regulation on the international plane. The current debate over Internet freedom is then analysed with particular focus given to Hillary Clinton’s speech on Internet freedom and its subsequent articulation by Special Rapporteur Frank La Rue. The concluding part introduces the critical work of Evgeny Morozov and Jaron Lanier to an international law audience in order to deepen the debate over Internet freedom and to point to the concept’s limitations and dangers. It is too early to say whether a ‘right to Internet freedom’ has achieved universal recognition, but this article makes the case that it is worth taking seriously and that Internet freedom may need its own category of protection beyond freedom of expression.”

“The freedom of expression is vital to our ability to convey opinions, convictions, and beliefs, and to meaningfully participate in democracy. The state may, however, ‘limit’ the freedom of expression on certain grounds, such as national security, public order, public health, and public morals. Examples from around the world show that the freedom of individuals to express their opinions, convictions, and beliefs is often imperilled when states are not required to meet a substantial justificatory burden when limiting such freedom. This article critiques one of the common justificatory approaches employed in a number of jurisdictions to frame the state’s burden to justify limitations on the freedom of expression—the proportionality test. It presents a case for an alternative approach that builds on the merits and addresses some of the weaknesses of a typical proportionality test. This alternative may be called a ‘duty-based’ justificatory approach because it requires the state to demonstrate—through the presentation of publicly justifiable reasons—that the individual concerned owes others a duty of justice to refrain from the expressive conduct in question. The article explains how this approach is more normatively compelling than a typical proportionality test. It also illustrates how such an approach can better constrain the state’s ability to advance majoritarian interests or offload its positive obligations by limiting the freedom of expression of minorities and dissenting voices.”

“Many would argue that these are the fundamental goals of a good education. So why has Cambridge University taken to warning its students that the sexual violence in Titus Andronicus might be traumatic for them? Why are other universities in America and increasingly in Britain introducing measures to protect students from speech and texts they might find harmful? Safe spaces, trigger warnings and no-platforming are now campus buzzwords – and they’re all designed to limit free speech and the exchange of ideas. As celebrated social psychologist Jonathan Haidt argues in his book ‘The Coddling of the American Mind’, university students are increasingly retreating from ideas they fear may damage their mental health, and presenting themselves as fragile and in need of protection from any viewpoint that might make them feel unsafe. The culture of safety, as Haidt calls it, may be well intentioned, but it is hampering the development of young people and leaving them unprepared for adult life, with devastating consequences for them, for the companies that will soon hire them, and for society at large. That, Haidt’s critics argue, is an infuriating misinterpretation of initiatives designed to help students. Far from wanting to shut down free speech and debate, what really concerns the advocates of these new measures is the equal right to speech in a public forum where the voices of the historically marginalized are given the same weight as those of more privileged groups. Warnings to students that what they’re about to read or hear might be disturbing are not an attempt to censor classic literature, but a call for consideration and sensitivity. Safe spaces aren’t cotton-wool wrapped echo chambers, but places where minority groups and people who have suffered trauma can share their experiences without fear of hostility. In November 2018, Haidt came to the Intelligence Squared stage to discuss and debate these ideas. Joining him were the former chief rabbi Jonathan Sacks, who believes that educating young people through debate and argument helps foster robustness, author and activist Eleanor Penny, and sociologist Kehinde Andrews, one of the UK’s leading thinkers on race and the history of racism.”

The source directs the readers to the transcript of two lectures delivered by Lee C. Bollinger at Cambridge University’s 2018 Clare Hall Tanner Lectures. In the first lecture, Prof. Bollinger delves into the First Amendment experience and presents a summary of it prior to offering some observations about how it may be interpreted as well as understood. In the second lecture, Prof. Bollinger focuses on the present and the future, intent on interrogating three of the most important questions of the present century: “(1) Should the legacy of the last century be continued and what are its prospects given current political and global trends towards authoritarian regimes? (2) What should be the general approach to dealing with the rising importance of the Internet and its component elements, which are now widely perceived as increasingly dominant in shaping the public forum? (3) And, lastly, what are we to make of the fact that the modern world is increasingly inter-connected and inter-dependent, yielding problems and issues that can only be resolved effectively through collective international action, with a new truly global communications technology to serve as a global public forum, but with vastly different competing conceptions of free speech and free press in contention? In other words, how should we think about free speech in a globalized world?”

“The objective of this publication is to present inter-American jurisprudence that defines the scope and content of this right in a systematic and updated way. Among the most important topics it highlights: the importance, function, and characteristics of the right to freedom of expression, as well as the types of speech protected; the prohibition of censorship and indirect restrictions; the protection of journalists and social communications media; the exercise of freedom of expression by public officials; and freedom of expression in the area of electoral processes.”

“The First Amendment dominates debate about freedom of speech in the United States. Yet it is not the only legal instrument that protects expressive freedom, the rights of the institutional press, or the democratic values that these rights facilitate. A rich body of local, state, and federal laws also does so, and does so in ways the First Amendment does not. This Article explores the history and present-day operation of this non–First Amendment body of free speech law. Doing so changes our understanding of both the past and the present of the American free speech tradition. It reveals that there was more legal protection for speech in the nineteenth century than scholars have assumed. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires, than what we commonly assume. Recognizing as much is important not only as a descriptive matter but also as a doctrinal one. This is because in few other areas of constitutional law does the Supreme Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished. Missing from the Court’s understanding of freedom of speech is almost any recognition of the important non-constitutional mechanisms that legislators have traditionally used to promote it. The result is a deeply inconsistent body of First Amendment law that relies on a false view of both our regulatory present and our regulatory past — and is therefore able to proclaim a commitment to laissez-faire principles that, in reality, it has never been able to sustain.”