Monday, October 22, 2012
Ronald J. Krotoszynski, University of Alabama School of Law, has published Questioning the Value of Dissent and Free Speech More Generally: American Skepticism of Government and the Protection of Low-Value Speech, in Dissenting Voices in American Society: The Role of Lawyers, Judges, and Citizens (Austin Sarat, ed.; Cambridge University Press, 2012). Here is the abstract.
Download the essay from SSRN at the link.
The First Amendment protects speech that plainly has very little objective social value. From a purposive or utilitarian perspective, affording low value speech substantial First Amendment protection makes little sense. In my view, however, U.S. free speech doctrine and theory does not protect speech on utilitarian or cost/benefit grounds, but rather as one part of a larger legal framework designed to limit and check government power in hopes of avoiding its abuse. In many respects, U.S. free speech law serves as a kind of structural bulwark, akin to the separation of powers and federalism, designed to prevent government from acting in an arbitrary or unjust manner. The essay posits that a deep seated and longstanding distrust of government, at all levels, best explains the U.S. approach to freedom of speech – just as it has explanatory force with respect to significant aspects of government structure at the state and federal level in the United States. Accordingly, challenging the prevailing free speech orthodoxy on utilitarian or cost/benefit grounds is unlikely to win over many converts, because these arguments fail to address or engage the fear of government abuse of power that undergirds the remarkably broad protection afforded even obviously worthless, or affirmatively socially harmful, speech.