Pub Date : 2021-01-26DOI: 10.1093/oxfordhb/9780198827580.013.2
V. Blasi
This chapter examines the classic arguments for freedom of speech. It traces the first comprehensive argument for freedom of speech as a limiting principle of government to John Milton’s Areopagitica, a polemic against censorship by a requirement of prior licensing in which Milton develops an argument for the pursuit of truth through exposure to false and heretical ideas rather than the passive reception of orthodoxy. Despite Milton’s belief in the advancement of understanding through free inquiry, he was far from liberal in the modern sense of that term and he did not, for instance, extend the tolerance he advocated to Catholic religious texts. The chapter then assesses what James Madison had to say about the role of public opinion as a crucial element in the creation of political authority and the preservation of rights, and considers Justice Oliver Wendell Holmes, Jr’s opinions about the freedom of speech. It also looks at how the celebrated federal judge Learned Hand conceives of the freedom of speech as a majority-creating procedure rather than an individual right, while Justice Louis Brandeis understood the freedom of speech to be an individual liberty important as such but especially important for its contribution to democratic character. Ultimately, the most widely-read of the classic arguments for free speech is that developed by John Stuart Mill in his Essay On Liberty.
本章探讨了支持言论自由的经典论据。它将言论自由作为政府限制原则的第一个全面论点追溯到约翰·弥尔顿的《论出版自由》，这是一场反对审查制度的辩论，通过要求事先许可，弥尔顿在其中提出了通过暴露错误和异端思想而不是被动接受正统思想来追求真理的论点。尽管弥尔顿相信通过自由探究可以促进理解，但他远非现代意义上的自由主义者，例如，他没有将他所提倡的宽容扩展到天主教的宗教文本中。然后，本章评估了詹姆斯·麦迪逊(James Madison)关于公众舆论在建立政治权威和维护权利方面的关键作用的观点，并考虑了大法官奥利弗·温德尔·霍姆斯(Oliver Wendell Holmes, Jr .)关于言论自由的观点。它还考察了著名的联邦法官勒尼德·汉德(Learned Hand)如何将言论自由视为一种创造多数的程序，而不是一项个人权利，而大法官路易斯·布兰代斯(Louis Brandeis)则将言论自由理解为一种个人自由，它本身很重要，但尤其重要的是它对民主特性的贡献。最终，最被广泛阅读的关于言论自由的经典论点是约翰·斯图亚特·密尔在他的《论自由》中提出的。
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Pub Date : 2021-01-26DOI: 10.1093/oxfordhb/9780198827580.013.13
Stephen A. Gardbaum
This chapter describes the structural elements or components of a free speech right. The nature and extent of a free speech right depends upon a number of legal components. The first is the legal source of the right (in common law, statute, or a constitution) and the force of the right having regard to how it is enforced, and whether and how it can be superseded. The second component is the ‘subject’ of free speech rights, or who are the rights-holders: citizens, natural or legal persons. The third is the ‘scope’ of a free speech right, while the fourth is the kind of obligation it imposes on others: a negative prohibition or a positive obligation. The fifth component is the ‘object’ of a free speech right: who is bound to respect a right of freedom of expression and against whom the right may be asserted. Finally, there is the ‘limitation’ of a free speech right.
{"title":"The Structure of a Free Speech Right","authors":"Stephen A. Gardbaum","doi":"10.1093/oxfordhb/9780198827580.013.13","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780198827580.013.13","url":null,"abstract":"This chapter describes the structural elements or components of a free speech right. The nature and extent of a free speech right depends upon a number of legal components. The first is the legal source of the right (in common law, statute, or a constitution) and the force of the right having regard to how it is enforced, and whether and how it can be superseded. The second component is the ‘subject’ of free speech rights, or who are the rights-holders: citizens, natural or legal persons. The third is the ‘scope’ of a free speech right, while the fourth is the kind of obligation it imposes on others: a negative prohibition or a positive obligation. The fifth component is the ‘object’ of a free speech right: who is bound to respect a right of freedom of expression and against whom the right may be asserted. Finally, there is the ‘limitation’ of a free speech right.","PeriodicalId":348867,"journal":{"name":"The Oxford Handbook of Freedom of Speech","volume":"149 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131075347","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-26DOI: 10.1093/oxfordhb/9780198827580.013.30
Dieter Grimm
This chapter explains that in a number of jurisdictions, freedom of media is treated as a subset of freedom of speech. It is speech amplified by technical means such as print or electromagnetic waves. Like freedom of speech, it is conceived as an individual right of the speaker. It is also regarded as a right of the owners of media, even if they do not speak themselves, because they may determine what is published and what is not. However, freedom of media should be regarded as a distinct right. Both rights share the quality of communicative rights, but they refer to different types of communication, individual communication and mass communication. When the early constitutions were adopted, no other means of mass communication than the press existed. Younger constitutions mention broadcasting, but did not foresee the emergence of television; even very recent constitutions remain silent regarding the internet. However, only an extremely crude textualist or originalist would conclude that media not explicitly mentioned in the constitution are not protected against government intrusion. ‘Press’ is a subcategory of the broader notion of ‘media of mass communication’ and thus open for the inclusion of newly emerging media without a constitutional amendment being necessary.
{"title":"Freedom of Media","authors":"Dieter Grimm","doi":"10.1093/oxfordhb/9780198827580.013.30","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780198827580.013.30","url":null,"abstract":"This chapter explains that in a number of jurisdictions, freedom of media is treated as a subset of freedom of speech. It is speech amplified by technical means such as print or electromagnetic waves. Like freedom of speech, it is conceived as an individual right of the speaker. It is also regarded as a right of the owners of media, even if they do not speak themselves, because they may determine what is published and what is not. However, freedom of media should be regarded as a distinct right. Both rights share the quality of communicative rights, but they refer to different types of communication, individual communication and mass communication. When the early constitutions were adopted, no other means of mass communication than the press existed. Younger constitutions mention broadcasting, but did not foresee the emergence of television; even very recent constitutions remain silent regarding the internet. However, only an extremely crude textualist or originalist would conclude that media not explicitly mentioned in the constitution are not protected against government intrusion. ‘Press’ is a subcategory of the broader notion of ‘media of mass communication’ and thus open for the inclusion of newly emerging media without a constitutional amendment being necessary.","PeriodicalId":348867,"journal":{"name":"The Oxford Handbook of Freedom of Speech","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123296891","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-26DOI: 10.1093/oxfordhb/9780198827580.013.14
A. Kenyon
This chapter explores the positive structural dimensions of the freedom of speech by using a democratic free speech rationale. While far from the only aspect of positive free speech, it offers a useful example of the freedom’s positive dimensions. The chapter focuses on legal conditions underlying public speech and their links to democratic constitutional arrangements. It outlines the general approach before drawing brief comparisons with two well-known US approaches to free speech and media freedom. The chapter then highlights two of the multiple ways in which ‘positive’ can be used in relation to free speech. Positive may concern positive freedom, the idea that freedom is not only a negative liberty but requires support or enablement. It can also be used in terms of a positive right, typically a legal right enforced through courts.
{"title":"Positive Free Speech: A Democratic Freedom","authors":"A. Kenyon","doi":"10.1093/oxfordhb/9780198827580.013.14","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780198827580.013.14","url":null,"abstract":"This chapter explores the positive structural dimensions of the freedom of speech by using a democratic free speech rationale. While far from the only aspect of positive free speech, it offers a useful example of the freedom’s positive dimensions. The chapter focuses on legal conditions underlying public speech and their links to democratic constitutional arrangements. It outlines the general approach before drawing brief comparisons with two well-known US approaches to free speech and media freedom. The chapter then highlights two of the multiple ways in which ‘positive’ can be used in relation to free speech. Positive may concern positive freedom, the idea that freedom is not only a negative liberty but requires support or enablement. It can also be used in terms of a positive right, typically a legal right enforced through courts.","PeriodicalId":348867,"journal":{"name":"The Oxford Handbook of Freedom of Speech","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124678677","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-26DOI: 10.1093/oxfordhb/9780198827580.013.19
G. Stone
This chapter investigates the question of speech causing unlawful conduct. Should speech that causes others to violate the law be protected by the freedom of speech? If those who violate the law can be punished, why not also punish those who cause them to violate the law? For more than two centuries, this question has played a central role in the evolution of First Amendment jurisprudence in the United States. Because the issue has arisen most often in the United States in time of war, the chapter reviews the American experience with this question during the ‘Half War’ with France in 1798, the Civil War, World War I, the Cold War, and over the course of the last half-century. It then offers some concluding observations.
{"title":"When Is Speech That Causes Unlawful Conduct Protected by Freedom of Speech? The Case of the First Amendment?","authors":"G. Stone","doi":"10.1093/oxfordhb/9780198827580.013.19","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780198827580.013.19","url":null,"abstract":"This chapter investigates the question of speech causing unlawful conduct. Should speech that causes others to violate the law be protected by the freedom of speech? If those who violate the law can be punished, why not also punish those who cause them to violate the law? For more than two centuries, this question has played a central role in the evolution of First Amendment jurisprudence in the United States. Because the issue has arisen most often in the United States in time of war, the chapter reviews the American experience with this question during the ‘Half War’ with France in 1798, the Civil War, World War I, the Cold War, and over the course of the last half-century. It then offers some concluding observations.","PeriodicalId":348867,"journal":{"name":"The Oxford Handbook of Freedom of Speech","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126198755","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-26DOI: 10.1093/oxfordhb/9780198827580.013.34
Caroline West
This chapter discusses pornography, which is often defended on the basis of freedom of speech or expression. Even if some pornography is not just offensive but actively harmful, it is speech; and, as such, enjoys the special protections generally extended to speech in liberal societies. In the United States, pornography even enjoys legal protection under the free speech clause of the First Amendment of the US Constitution. The chapter then critically examines the traditional free speech defence of pornography, as well as prominent feminist arguments for legal regulation of some pornography, before turning to consider a surprising but increasingly influential free speech-based line of argument against pornography. In discussing these matters, the primary focus will be on general issues of political morality, rather than questions of legal interpretation.
{"title":"Pornography","authors":"Caroline West","doi":"10.1093/oxfordhb/9780198827580.013.34","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780198827580.013.34","url":null,"abstract":"This chapter discusses pornography, which is often defended on the basis of freedom of speech or expression. Even if some pornography is not just offensive but actively harmful, it is speech; and, as such, enjoys the special protections generally extended to speech in liberal societies. In the United States, pornography even enjoys legal protection under the free speech clause of the First Amendment of the US Constitution. The chapter then critically examines the traditional free speech defence of pornography, as well as prominent feminist arguments for legal regulation of some pornography, before turning to consider a surprising but increasingly influential free speech-based line of argument against pornography. In discussing these matters, the primary focus will be on general issues of political morality, rather than questions of legal interpretation.","PeriodicalId":348867,"journal":{"name":"The Oxford Handbook of Freedom of Speech","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131802682","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-26DOI: 10.1093/oxfordhb/9780198827580.013.16
A. Kenyon
This chapter examines how free speech interacts with defamation law. When thinking about defamation law and free speech, it can be difficult not to consider the classic US case of New York Times v Sullivan. The decision substantially changed how US defamation law treats political speech, and has resonated widely in other jurisdictions. It increased the burdens facing public officials who sue in defamation, making it far more difficult for them to succeed. The chapter draws out two broad issues from Sullivan and subsequent decisions which have relevance for understanding defamation and free speech more generally, especially democratic aspects of freedom of expression. It also highlights three ways in which the reform of defamation law could better protect free speech. First, legal doctrine could be reformed. Second, remedies could be altered to reduce the chill of defamation law. Third, and perhaps less often recognized, the effective degree of freedom of speech provided under any given defamation law depends greatly on litigation practice. Reforming defamation litigation has been tried in many jurisdictions and there have long been proposals for larger reforms, such as developing alternative dispute resolution methods and venues for defamation claims.
{"title":"Defamation Law, Sullivan, and the Shape of Free Speech","authors":"A. Kenyon","doi":"10.1093/oxfordhb/9780198827580.013.16","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780198827580.013.16","url":null,"abstract":"This chapter examines how free speech interacts with defamation law. When thinking about defamation law and free speech, it can be difficult not to consider the classic US case of New York Times v Sullivan. The decision substantially changed how US defamation law treats political speech, and has resonated widely in other jurisdictions. It increased the burdens facing public officials who sue in defamation, making it far more difficult for them to succeed. The chapter draws out two broad issues from Sullivan and subsequent decisions which have relevance for understanding defamation and free speech more generally, especially democratic aspects of freedom of expression. It also highlights three ways in which the reform of defamation law could better protect free speech. First, legal doctrine could be reformed. Second, remedies could be altered to reduce the chill of defamation law. Third, and perhaps less often recognized, the effective degree of freedom of speech provided under any given defamation law depends greatly on litigation practice. Reforming defamation litigation has been tried in many jurisdictions and there have long been proposals for larger reforms, such as developing alternative dispute resolution methods and venues for defamation claims.","PeriodicalId":348867,"journal":{"name":"The Oxford Handbook of Freedom of Speech","volume":"2016 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121339910","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-26DOI: 10.1093/oxfordhb/9780198827580.013.20
Gregory P. Magarian
This chapter surveys the distinctive free speech problems raised by the Internet and social media, discussing the most pressing, prominent issues around Internet speech regulation, with attention to variations across legal systems. It begins by briefly describing the Internet’s communicative architecture. The chapter then looks at structural concerns that have limited online free speech or prompted regulatory attention in the Internet Age. These include inequalities of access; power relationships among governments, private speech intermediaries, and Internet users; and the ways the Internet’s architecture complicates effective regulation. Finally, the chapter considers key substantive issues for online communication, including hate speech, privacy, intellectual property, and the credibility and influence of online news sources.
{"title":"The Internet and Social Media","authors":"Gregory P. Magarian","doi":"10.1093/oxfordhb/9780198827580.013.20","DOIUrl":"https://doi.org/10.1093/oxfordhb/9780198827580.013.20","url":null,"abstract":"This chapter surveys the distinctive free speech problems raised by the Internet and social media, discussing the most pressing, prominent issues around Internet speech regulation, with attention to variations across legal systems. It begins by briefly describing the Internet’s communicative architecture. The chapter then looks at structural concerns that have limited online free speech or prompted regulatory attention in the Internet Age. These include inequalities of access; power relationships among governments, private speech intermediaries, and Internet users; and the ways the Internet’s architecture complicates effective regulation. Finally, the chapter considers key substantive issues for online communication, including hate speech, privacy, intellectual property, and the credibility and influence of online news sources.","PeriodicalId":348867,"journal":{"name":"The Oxford Handbook of Freedom of Speech","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131765385","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-06-30DOI: 10.1017/9781108859561.007
Joo-cheong Tham, K. Ewing
This chapter examines how elections give rise to special problems relating to speech. In the choice of government and governors, speech needs to be lively and robust, which is not to say of course that speech should be unconstrained. Indeed, the paradox of elections is that they need both freedom and restraint if electoral purposes are to be served. In the context between candidates and parties, who else should be permitted to speak, and what if anything should they be prohibited from saying? In the context of elections, however, what has become a bigger concern in modern liberal democracies is not who may speak and what can they say, but what means can they use, what opportunities and restrictions are to apply to the means used, and how much can be spent in projecting electoral messages? These latter questions do not address the content of speech so much as its volume, but they are urgent questions in light of the exponential increase in the sums spent by candidates, parties, and others in seeking to influence electoral outcomes.
{"title":"Free Speech and Elections","authors":"Joo-cheong Tham, K. Ewing","doi":"10.1017/9781108859561.007","DOIUrl":"https://doi.org/10.1017/9781108859561.007","url":null,"abstract":"This chapter examines how elections give rise to special problems relating to speech. In the choice of government and governors, speech needs to be lively and robust, which is not to say of course that speech should be unconstrained. Indeed, the paradox of elections is that they need both freedom and restraint if electoral purposes are to be served. In the context between candidates and parties, who else should be permitted to speak, and what if anything should they be prohibited from saying? In the context of elections, however, what has become a bigger concern in modern liberal democracies is not who may speak and what can they say, but what means can they use, what opportunities and restrictions are to apply to the means used, and how much can be spent in projecting electoral messages? These latter questions do not address the content of speech so much as its volume, but they are urgent questions in light of the exponential increase in the sums spent by candidates, parties, and others in seeking to influence electoral outcomes.","PeriodicalId":348867,"journal":{"name":"The Oxford Handbook of Freedom of Speech","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123863748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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