Philosopher views

COMMUNITY VALUES TRUMP FREE SPEECH

1. COMMUNITARIAN FREE SPEECH REQUIRES THE SUPPRESSION OF HATE SPEECH

Michael L. Siegel, J.D. at Albany Law School of Union University, ALBANY LAW JOURNAL OF SCIENCE & TECHNOLOGY, 1999, p. 378.

In the tradition of communitarian free speech theorists from William Brennan to Robert Bork, Mr. Fiss argues that the [First] amendment was intended "to broaden the terms of public discussion," rather than to protect individual self-expression; and he wants to persuade us that in current free speech battles "the state might become the friend, rather than the enemy, of freedom." By suppressing hate speech, pornography and unlimited campaign contributions, Mr. Fiss maintains, the state may legitimately "silence the voices of some in order to hear the voices of the others. Sometimes there is simply no other way."

Edward J. Eberle, Assistant Professor of Law at Oklahoma City University School of Law, CASE WESTERN RESERVE UNIVERSITY, 1992, p. 435.

As in moral philosophy, the First Amendment contains many core values, but any one core value does not predominate over another. It is incoherent in the realm of First Amendment theory to insist upon the universality of any one value to the exclusion of others, as in moral philosophy. A web of values is preferable to a single strand representing one value. Therefore, First Amendment work should focus more on finding reasonably reliable solutions than universal answers. Because free speech values do not exist in a void but interact with society in complicated ways, free speech must yield in certain limited circumstances to social regulation. In other words, while the First Amendment comprises a set of first order principles which will almost always prevail in core speech areas, free speech is nevertheless not absolute. Communitarian interests may represent important social values too, and may occasionally outweigh free speech values in certain limited circumstances.
3. EXCESSIVE FREE SPEECH RESULTS IN THE TYRANNY OF THE MAJORITY

David A. J. Richards, JD Candidate, CARDOZO STUDIES IN LAW AND LITERATURE, Summer 2000, p. 93-94

De Tocqueville offered his penetrating analysis of the tyranny of the majority in America as perhaps the greatest democratic threat to the underlying legitimacy of its constitutional institutions, because such majoritarian factions undermine respect for the basic liberties and rights of the person; Madison had, at the founding of the American constitutional republic, lucidly stated the same threat as the heart of the republican dilemma of constitutional design: namely, how, at once, to secure basic human rights to all (in terms of which the legitimacy of constitutionalism was to be judged), yet also so limit the factions (in particular, majority factions) to which the free exercise of such rights would give rise, factions that would, if majority rule were accorded untrammeled sway, undermine its legitimacy. On this view, mass society threatens the very legitimacy of democratic constitutionalism. We can see the continuing cogency of this analysis in the ways in which free speech is today uncritically associated with an illimitable public sphere for the interests of mass society that cannot reasonably accommodate the right to privacy. There is no good reason of principle why the right to privacy should have been thus marginalized in the alleged service of free speech. Indeed, as I have argued, such marginalization violates human rights conspicuously at threat in the modern world, namely, those associated with the imperative moral needs of members of subordinated groups to be accorded respect for their ethical individuality in protest of the dehumanizing terms of unjust stereotypes imposed on them. The contemporary American understanding of free speech, insensitive to the weight properly to be accorded these rights, subverts its ethical basis, in effect, ratifying populist impulses of mass society that free speech, properly understood, should resist. Such tyranny of the majority is a threat to the legitimacy of constitutional democracy, and, in light of the argument of this article, we may reasonably interpret this threat in contemporary circumstances in terms of the marginalization of privacy as a protected interest and right. Such callous disregard of the moral weight properly to be accorded privacy in turn corrupts, indeed trivializes the principle of free speech that institutionalizes such disregard.

FREE SPEECH HAS NO INTRINSIC WORTH

1. FREE SPEECH FAILS TO ALLOW ACTUALIZATION OF AUTONOMY

O. Lee Reed, Professor of Legal Studies at the University of Georgia, American Business Law Journal, Fall 1997, p. 11.

The weaknesses of existing individual speech value theories, including that of autonomy, are that (1) they do not explain why free speech is more specific to self-fulfillment or autonomy than is any other freedom of action, and (2) they do not adequately account for the often-asserted value of speech in the public sphere. That free speech contributes to self-fulfillment or autonomy is arguably clear. What is not clear is how existing theories of individual speech value relate self-fulfillment or autonomy to free speech more than to freedom of conduct generally. Does not the freedom to act, not just to speak, realize most fully the unmanipulated individual? Professor Baker directly confronts this difficulty in his theory of individual speech value. He acknowledges that speech cannot easily be distinguished from conduct and proposes that the First Amendment protect all nonviolent, noncoercive conduct. But however cleverly he finesses the issue philosophically, it remains that there is little historical support in jurisprudence for his position to constitutionalize all noncoercive conduct. Rather than argue that free speech means freedom of noncoercive conduct, he should advocate that freedom directly without bootstrapping speech to it. So far, the commentators have not been persuasive in making speech ontologically important to the value of fulfilling the autonomous self.

Christopher M. Schultz, JD Candidate, ARIZONA LAW REVIEW, Summer 1999, p. 597-598.

Freedom of expression as protected by the First Amendment to the United States Constitution is a central right afforded Americans. Accordingly, United States courts have been quite reluctant to allow Congress or state legislatures to limit the free expression of citizens. However, the courts have recognized certain exceptions to this overwhelming prejudice in favor of protecting all forms of speech Content neutral restrictions on free speech pass constitutional scrutiny more easily than content-based restrictions. In the latter case, content-based restrictions are only allowed if (1) the speech in question falls within the category of "low value" as opposed to "high value" speech and (2) the so-called low value speech occurs in a context narrowly defined by the courts as the type of situation where restriction is appropriate.
3. THE FIRST AMENDMENT CANNOT BE ABSOLUTE

Michael L. Siegel, J.D., Albany Law School of Union University 1999, ALBANY LAW JOURNAL OF SCIENCE AND TECHNOLOGY, 1999, p. 385-386.

If the jurisdictional hurdle were overcome, the next step of the analysis is whether or not the speech and content of a web site are protected under the First Amendment. The First Amendment to the U.S. Constitution has never been construed to be an absolute protection of all forms of speech. The exceptions to the rule include fighting words, security breaches, and obscenities. Although Thomas Jefferson may have intended for the First Amendment to be absolute in nature, the realization that hate speech can lead to group tension suggests that the framers of the Constitution did not have an absolutist stance on free speech. Instead, the freedom of speech should be seen as a means to an end and not as an end in itself. The freedom of speech was to give citizens the ability to determine their representatives for government. Speech cannot be analyzed in a vacuum; it must be analyzed within a given context and with the accompanying content. The Supreme Court has adopted an intermediate position between protecting speech with political content and an absolutist reading of the First Amendment in which all speech is protected. Although the tests the Supreme Court has devised over the years may suggest that the Court has delineated specific areas of protected speech, the Court has taken a result-oriented