Graduate studies at Western
|Abstract||It seems clear that the vast majority of citizens in democratic regimes are willing to accept some state-imposed limits on their liberty.Â Â But while we hardly balk at laws against murder and theft, we tend to believe that the state inherits a particularly heavy burden of proof when it seeks to intervene in the expressive areas of our lives, for example, by prohibiting the publication or distribution of some book, newspaper, or film.Â In short, we seem to believe there is something rather special about speech and expression that warrants its stringent protection. Â Â Â Â Â Â Â Â Â Â Â This attitude is reflected in and reinforced by the existence of explicitly stated rights to free speech.Â The First Amendment to the United States Constitution reads, in part, â€œCongress shall make no law . . . abridging freedom of speech, or of the press.â€Â Section 2(b) of the Canadian Charter of Rights and Freedoms grants people â€œfreedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.â€Â Section 77 of the Danish Constitution states, â€œAny person shall be entitled to publish his thoughts in printing, in writing, and in speech, provided that he may be held answerable in a court of justice.Â Censorship and other preventive measures shall never again be introduced.â€Â Section E, Article 100 of the Norwegian Constitution and Chapter 2, Articles 1 and 13 of the Swedish Constitution similarly attest to the central importance of free speech.Â Finally, the right to free speech is recognized in transnational statements of rights like the International Covenant on Civil and Political Rights. Â Â Â Â Â Â Â Â Â Â Â This paper is about the reasons for thinking that free speech is extremely valuable and so, by extension, about the justification of the right to free speech.Â Relative to most other parts of the world, North Americans and Scandinavians enjoy expansive liberties of expression, and this can make us complacent.Â We generally take it for granted that we are able to read and publish what we please.Â But it is important to think about why we have a right to free speech.Â For if we cannot defend it in sober moments, what will we say when that right is threatened?Â And how can we speak out for others whose governments currently do not respect that right? Â Â Â Â Â Â Â Â Â Â Â I do not mean to imply that no one has attempted to provide a defense of free speech.Â On the contrary, free speech theory has developed into a minor cottage industry for legal scholars and philosophers, whom we may divide roughly into two camps.Â Consequentialists argue for the protection of speech by claiming that the good effects of allowing maximally unfettered speech generally outweigh the bad effects of restricting speech.Â Nonconsequentialists, on the other hand, contend that speech deserves protection because of its intrinsic features, and that the rightness or wrongness of suppressing speech cannot be determined merely by calculating the probable overall effects of doing so. Â Â Â Â Â Â Â Â Â Â Â Of these two positions, consequentialism is by far the preferred strategy among contemporary free speech theorists.Â But my aim in this paper is to outline and defend a nonconsequentialist justification of free speech which, for reasons that will become clear below, I call direct nonconsequentialism.Â Â Direct nonconsequentialism, I shall argue, does not suffer from the defects of traditional consequentialist justifications of free speech.Â More importantly, since it focuses on what it is about speech itself that warrants its stringent protection, direct nonconsequentialism makes better sense of our pretheoretic intuitions regarding the importance of free speech than other apparently nonconsequentialist positions..|
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