Thursday, February 6, 2014
Frederick Schauer, University of Virginia School of Law, has published Free Speech on Tuesdays. Here is the abstract.
The philosopher John Searle famously observed that there is “no remark without remarkableness,” by which he meant that even simple assertions presuppose that there is some reason to make the assertion, typically that what is being asserted is in some way special or unexpected. Similarly, we do not normally specify rights unless there is something special about the specified rights. We would not, for example, assert that (or protect specially) a right to free speech on Tuesdays unless there was something distinguishing free speech on Tuesdays from free speech on any other day of the week. And if we take this trivial observation at one remove, we can see, non-trivially, that to specify a right presupposes that there is something special about the right compared to another right within which it may be encompassed. With respect to free speech, for example, specifying a right to free speech presupposes something special about the protected speech compared to the speech that might be included within a more general right to liberty. And thus free speech, although a salient example, is but an example of a larger account of nested rights – the way in which rights might be included within other rights, and the circumstances under which the included rights are or are not explicitly specified.
Download the paper from SSRN at the link.