Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, November 7, 2022

Post on The Unfortunate Consequences of a Misguided Free Speech Principle

Robert Post, Yale Law School, has published The Unfortunate Consequences of a Misguided Free Speech Principle. Here is the abstract.

This is a short essay that will be published in a forthcoming issue of Daedalus on “The Future of Free Speech,” to be edited by Lee Bollinger and Geoff Stone. The essay makes the ambitious claim that it is misleading to diagnosis the current diseased state of public discussion in the United States in terms of an abstract “free speech principle,” as do many commentators. Because human speech is always embedded within specific and concrete social practices, the desirability of speech is always assessed by reference to the flourishing of these practices rather than by the question of speech in the abstract. The idea that speech is special and protected by distinct principles of free expression arose when printing created the modern public sphere. Civil society aspired to use its new communicative capacities to exert political control over the state. Democracy was itself seen as government by public opinion. Prominent theories of free speech do correspond to important aspects of public discourse. Public opinion arises and evolves continuously within public discourse, as concepts of the marketplace of ideas might perhaps be said to theorize. Participants within public discourse ought indeed to be treated as self-determining, so that they may direct the actions of the state through the creation of public opinion, as perhaps might be conceptualized within theories of speaker autonomy. The striking inclusivity of American public discourse, as required by theories prohibiting content discrimination, is necessary to ensure that the American state can maintain legitimacy throughout its vastly diverse population. But it is nevertheless mistaken to conceptualize public discourse through the lens of classic free speech principles like the marketplace of ideas or speaker autonomy or the evil of content discrimination. Public discourse is not simply a collection of individual speech acts. It is a social practice that has a function, which is to ensure the political accountability of the state. Under the spell of a free speech principle, many believe that the illness of contemporary public debate can be cured by more speech. But this recommendation confuses symptoms with causes. Our public discourse has become rancid because our politics has become diseased. Our public discourse cannot be healed until our politics is restored. More speech may help this problem, but it also may exacerbate it. We cannot reach a clear diagnosis until we rid ourselves of the confusing fiction of a free speech principle and instead focus sharply on what we want the social practice of public discourse to achieve.

Download the article from SSRN at the link.

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