8 - The Paradoxes of Liberalism and the Failure of Theories Justifying a Right of Freedom of Expression

Summary

The right to freedom of expression appears problematic through and through. Its potential scope is defined by principle (5), which focuses on whether government's reasons for regulation include a concern with what messages audiences receive. But that scope is either too broad, rendering almost all content-based governmental regulations – and perhaps all governmental speech and speech subsidies – violative of freedom of expression, or it is indeterminate and incapable of principled delineation. Moreover, principle (5) leaves Track Two laws entirely untouched despite the immense magnitude of their message effects. Indeed, paradoxically, principle (5) itself may prevent government from remedying what government considers to be the untoward message effects of Track Two laws, given that any evaluation of and remedy for those message effects will violate evaluative neutrality.

In this chapter I shall attempt to diagnose the cause of the failure to find a cogent and defensible principle justifying and delimiting a right of freedom of expression. I believe that such failure is part and parcel of the failure of liberalism to provide a justification for tolerating illiberal views – which toleration is for many definitive of liberalism. The great liberal freedoms – freedom of religion, association, and expression – are all deeply paradoxical because they rest on the notion of “epistemic abstinence” – the idea that liberal government cannot impose its views of the Good on dissenters; that qua liberal government, it cannot know the Good.