Document Type

Article

Publication Title

Chicago-Kent Law Review

Abstract

The theory of free speech is a natural subject of interdisciplinary and comparative study for both political philosophers and lawyers. First, it has a highly abstract component, in which issues of general normative philosophy are at stake (for example, competing arguments of utilitarian or perfectionist teleological consequentialism versus those of deontological natural rights); second, it has an historical and contextual component, in which free speech is embedded in an historically evolving tradition of constitutional thought, including both political and legal arguments made over time about its proper meaning. The proper balance between these two components (political theory and interpretive history) differs in various legal systems, all of which are committed in some form to free speech. Nations with written constitutions and judicial review (the United States, Canada, Germany, and the nations governed by the European Convention of Human Rights) give greater play to abstract normative argument than a nation like the United Kingdom, in which free speech is a principle of common law in light of which supreme parliamentary law is interpreted; and those nations with long traditions of judicial review under written constitutions with highly abstract language (like the United States) refer more often to both abstract arguments of political theory and the long history of their interpretive experience than nations (such as Germany) with relatively recent post-World War II written constitutions (with U.S.-style judicial review) in which guarantees have been drafted in somewhat more specific terms. The two components of the study of free speech will accordingly interact in different ways depending on such distinctions. For example, the normative theory of utilitarianism may naturally fit the British constitutional landscape of free speech, while a deontological theory of rights may be the better account of both American and German constitutionalism. However, even systems (like Germany and the United States) that appeal to a comparable rights-based deontological theory and judicial review may, as we shall see, quite differently interpret such theory in ways that bear directly on central issues of free speech (for example, the constitutionality of group libel laws). This article addresses both components of the theory of free speech from an American constitutional perspective on these issues. In the course of my argument, I thus state and criticize several general normative theories of free speech (namely, utilitarian and perfectionist consequentialism and the argument from democracy), and then present a third view (free speech as toleration) and discuss its substantial merits both as a political theory and as an account of America's historically continuous interpretive experience. I bring the force of my argument into sharper focus in the form of a defense of one of American constitutionalism's quite distinctive views (namely, that the principle of free speech renders group libel laws problematic).

First Page

779

Volume

74

Publication Date

1999

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