4 - Positive Human Rights and Political Freedom

Summary

This chapter examines writing on positive human rights and political theory on positive freedom. The human rights analysis suggests positive free speech entails obligations on states to act for diversity in public speech to support autonomy and democratic practices, perhaps with courts having a role to frame positive free speech as a democratic precondition. Work from political theory is used to argue Isaiah Berlin’s analysis of positive and negative freedom has little relevance for positive dimensions of free speech. Other writers show positive communicative freedom is highly pluralistic, clearly connects with democratic goals, and includes negative liberty. Even for approaches generally within Berlin’s tradition, his essay should be left aside when discussing free speech. The writing examined in this chapter tends to place responsibility on institutional politics rather than judges. Similar ideas are evident in much of the legal scholarship considered in the next chapter. But it becomes clear in subsequent chapters why such a limited judicial role is unlikely to result in substantial positive freedom of speech, even if a larger judicial role also raises real challenges.