Free Speech Justifications

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This Article sets out what I believe are the relevant justifications for free speech, the term "free speech" being meant to cover both freedom of speech and freedom of the press. These are the justifications one might use to assess whether communications fall within a political or judicial principle of free speech and how great the protection of the communications that are covered should be. Such assessments are undertaken in a longer study that is mainly about the ways in which different uses of language affect the application of principles of freedom of speech to the criminalization of behavior.' That study concentrates on the communicative acts that lie on the border of free speech, especially solicitations to crime and threats, in an attempt to examine the proper boundaries of free speech. 2 My broader purpose illuminates the ambitions and limits of this Article. What follows is an attempt to set out the various justifications for free speech in a systematic way. This attempt should provide some antidote for confusion and for oversimplification, the main disease of legal and philosophical scholarship. The Article reveals the subtle plurality of values that does govern the practice of freedom of speech; and one can surmise that a similarly close investigation would reveal a plurality of values behind almost any important social practice. This Article also reflects my own sense that, whatever may be true at some ultimate level, human beings dealing with practical problems not only do but should rely on a plurality of values. Rather than undertaking an exhaustive analysis of any individual justification, this Article attempts to set forth the relevant justifications for free speech as clearly, systematically and accurately as possible. The main virtue of the following pages is that they provide a coherent and comprehensive overview of justifications for free speech, an overview that will enable the reader to see how one justification relates to others, to understand what may be left out if one or two justifications are portrayed as dominant, and to assess with a suitably critical eye claims about the content of particularjustifications and why they should be given a central place or rejected. Most of the Article is devoted to particular justifications for free speech, but first some preliminary matters are covered. Part I indicates why one can speak of a principle, or principles, of free speech only if there are bases for protecting speech that do not apply similarly to some substantially broader category of acts. Once Part I clarifies the idea of a principle of free speech, Part II examines the nature and classification ofjustifications. It maintains that efforts to arrive at any single unifying justification risk either simplifying or obscuring the complex values undergirding freedom of expression. This Part also suggests how the distinction between consequentialist and nonconsequentialist justifications usefully differentiates between reasons depending directly on empirical grounds and those resting on other normative claims. Parts III and IV then provide an account of multiple justifications divided along consequentialist and nonconsequentialist lines.

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