Thursday, June 21, 2018
Stephen Matthew Feldman, University of Wyoming College of Law, has published Postmodern Free Expression: A Philosophical Rationale for the Digital Age at 100 Marquette Law Review 1123 (2017). Here is the abstract.
Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades. Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances. Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self. But the three traditional rationales are incompatible with our digital age. In particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society. The time for a new rationale has arrived. The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the feminist concept of relational autonomy. This novel rationale constitutionally protects expression that fosters the ongoing creative and dynamic process of self-emergence. As such, the rationale justifies protecting expression concerned with the emergent self's struggle to define itself and the broader culture. The self-emergence rationale has important ramifications, especially for free-expression issues related to the Internet. The Roberts Court has invoked the traditional rationales in granting expansive first-amendment protections to corporations. Many Internet-related issues involve multinational corporations, such as Google, Verizon, and Facebook. But under the self-emergence rationale, publicly held business corporations should not have free-speech rights for two reasons. First, they have fixed rather than emergent natures. Second, they manipulate and limit the sociocultural space available for the autonomous self-emergence of individuals.