Free Speech. Jonathan Seglow

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СКАЧАТЬ those who oppose it an equal amount of time to make their case and to take questions from the audience. There is a sense in which the equality rule limits each side’s freedom of speech, as would curtailing the speech of a very long-winded audience member who wanted to take up all the time for himself; but in fact these rules are all in the service of the ideal of democratic free speech. ‘What is essential’, writes Meiklejohn, ‘is not that everyone shall speak, but that everything worth saying shall be said’ (p. 25). Free speech cannot be the right to say whatever one wants, to whomever one pleases on whatever occasion it pleases one to say it – a truth that the autonomy view may find a little harder to accommodate. By yoking free speech to democratic debate, Meiklejohn gives it a compelling defence and suggests a framework by which it may be regulated.

      At the same time though, as we know, democracies can limit free speech. Democracies have banned books, censored media and limited extremist – or, to put it less charitably, radical – political speech. How does this square with the democratic defence of free speech? Here it is important to emphasise the discursive component in Meiklejohn’s view. Democracy is not simply a process that takes citizens’ views in the form of their votes and converts the latter via the principle of majority rule into representative government, local or national. As in the town meeting, so in society at large, democracy involves widespread vigorous discussion. Deliberative democracy, to use the contemporary label, has been the object of sustained critical attention from democratic theorists in the last thirty years. It involves widespread rational, critical debate where citizens articulate the reasons behind their views, often emphasising how these reasons may be acceptable to others. Typically, the aim is to build consensus and reach agreement. The idea is that political decisions are more legitimate and morally defensible when they have been subject to vigorous challenge and counter-challenge. Deliberative theorists contrast their view with a simple voting procedure whereby, shielded by the secrecy of the ballot, citizens may vote on the basis of misguided, ill-informed, prejudiced, irrational or morally obnoxious reasons; yet these theorists do not deny that voting is usually necessary in decision-making in all but the smallest scale. Deliberative bodies are increasingly being used in many liberal democracies in order to involve citizens in processes of deliberation and consultation that will then affect the decisions of their representatives. They are often called ‘mini-publics’ (Setälä and Smith 2018) or ‘citizens’ assemblies’ (Warren and Pearse 2008). One worry about the deliberative democratic ideal is its relatively demanding nature; another one, not unrelated, is that in practice deliberation will privilege more advantaged citizens, who are often better able to articulate their views (for an overview of these debates see Bächtiger et al. 2018).

Although these two concerns are real, conceptualising democracy in deliberative terms goes a long way towards addressing the issues posed by representative democracies that limit free speech. On the deliberative view, free speech is the lifeblood of a democratic political culture; thus, in limiting it too severely, actual democracies would not properly respect their own normative ideal. Even if contemporary constitutional democracies in Europe, North America, Australasia and elsewhere fall some way short of the deliberative democratic ideal, the fact that they invariably give free speech constitutional protection bespeaks a degree of understanding of the notion that free speech is constitutive of a democratic political culture. At the same time, democratic free speech is compatible with, indeed may demand, some limits beyond the regulatory ones we have noted. For example, hate speech that claims that members of a minority ethnic or religious group are not genuinely members of the political community disrespects that group’s right to participate in the democratic process; for that reason hate speech might be regulated.

      Contemporary free speech theorists who have adopted the democratic view have defended a largely speaker-centric approach. For Robert Post, the value of democratic rule lies not so much in informed decision-making as in citizens’ ability reasonably to regard themselves as the ultimate authors of the law. This ‘requires that citizens have access to the public sphere so that they can participate in the formation of public opinion’ (Post 2011, p. 482) as well as hold their governments accountable to that opinion. This view sees free speech as the counterpart of formal voting, which (directly) puts in place a government and (indirectly) influences citizens’ attitudes in the public domain. Free speech seeks to shape citizens’ views, an important feature of democracy and something that elected governments always have an eye on.

A similar view is advanced by James Weinstein, who asserts ‘an uncontestable right of each individual to free and equal participation in the political process, including the public discussion by which our society’s laws, policies, and norms are evaluated’ (Weinstein 2011, p. 505). Weinstein connects the right to public speech with the value of political legitimacy. Just as it is illegitimate for unelected governments to make law and policy, so the decisions of fully elected governments are illegitimate, according to Weinstein, unless every citizen is free to speak out in favour of or against them (p. 498). It is this, according to Weinstein, which explains the cardinal US First Amendment principle of viewpoint neutrality: that it is always illegitimate for governments to limit the expression of any particular view or opinion, however controversial. (We consider the implications of Weinstein’s position for hate speech in the next chapter.)

      In his book Democracy and the Problem of Free Speech, the legal theorist Cass Sunstein defends another democracy-based argument for free speech by drawing an explicit distinction between ‘upper tier’ (high-value) speech, which contributes to public deliberation, and ‘lower tier’ speech, which does not. The upper tier category is capacious: apart from overtly political speech, it includes artistic, literary and cultural critique and broader social commentary (Sunstein 1993, pp. 148–53). Upper tier speech merits especially strong protection – that is, not just through viewpoint neutrality but also through the more encompassing content neutrality, which forbids governments from regulating speech merely on the grounds that it covers contentious topics, regardless of the view that is expressed on them. Thus, if a company forbade its employees to post any political views on social media, it would violate the constraint of content neutrality. Only content-neutral restrictions on the time, place and manner in which one expresses oneself may on occasion be justified at the level of upper tier speech. Thus it might be legitimate, for example, for a company to bar employees from posting political views on social media during work hours.

      The lower tier category consists of all other speech, including commercial speech (e.g. product descriptions, advertising), scientific speech, unlicensed medical and legal advice, depictions of violence in the media, defamation, hate speech, at least some pornography (some of which might also be political, as we shall see in Chapter 5), criminal speech such as bribery, insider trading, perjury, and threats of injury. This is a slightly confusing category, because it includes speech that is, actually or potentially, harmful in various ways and might even be better classified as conduct, not speech (e.g. threats and bribery), and speech that is not harmful but is not political either, even in the most expansive sense.

At any rate, the question is whether focus on political speech, broadly considered, is a strength or a weakness of the democratic view. The case for the latter is that there are certainly some kinds of intuitively high-value speech that are not political (or are political only if everything else is, which makes that category uninformative). Scientific speech is one example. Perhaps some of it is political – speech about climate change, for example – but much is not (e.g. pure mathematics), and anyway we might distinguish, say, between the science of climate change and its political implications. The religious speech of a closed religious order, such as the Amish or ultra-orthodox Jews, is another example. Speech on intimate matters between partners, family and friends is yet another. But, as we noted at the start, free speech often means in effect free public speech, something that these three forms normally are not. Given that there are rights to academic freedom, to freedom of religious conscience, and to a private life that will protect speech in these areas, is it enough if the democratic view explains only the value of public speech?

      Indeed the argument from democracy has an important advantage. In a liberal society there is always a presumption in favour of individual СКАЧАТЬ