Free Speech as Toleration
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Description
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 (for example, utilitarian or perfectionist teleological consequentialism versus deontological natural rights) are at stake; and second, it has a historical and contextual component, in which free speech is embedded in a 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 Britain, 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 US-style judicial review) in which guarantees have been drafter in 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 US and German constitutionalism. Even systems (like Germany and USA) 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 essay addresses both components of the theory of free speech from a US constitutional perspective on these issues. I begin by sketching and criticizing two general normative theories of free speech (namely, utilitarianism and the argument from democracy), and then present a third view (free speech as tolerations) and discuss its substantial merits both as political theory and an account of America’s historically continuous interpretive experience. I bring the force of my argument into sharper focus in the form of a concluding defence of US constitutionalism’s quite distinctive view that the principle of free speech renders group libel laws constitutionally problematic.
Source Publication
Free Expression: Essays in Law and Philosophy
Source Editors/Authors
W. J. Waluchow
Publication Date
1994
Recommended Citation
Richards, David A. J., "Free Speech as Toleration" (1994). Faculty Chapters. 1916.
https://gretchen.law.nyu.edu/fac-chapt/1916
