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THE POLITICS OF FREE SPEECH

Published online by Cambridge University Press:  04 June 2004

Scott D. Gerber
Scott D. Gerber
Affiliation:
Law, Ohio Northern University
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Extract

Freedom of speech long has been regarded as one of the “preferred freedoms” in the United States: one of the freedoms the U.S. Supreme Court deems “implicit in the concept of ordered liberty.” However, what freedom of speech does—and should—mean is a highly charged question in American constitutional law. I will explore this question by examining how several prominent constitutional theorists have proposed particular approaches to free speech law in order to further their political objectives. I will examine the free speech theories of the nation's leading feminist legal theorist (regarding pornography), critical race theorists (regarding hate speech), libertarian (regarding commercial speech), and legal republican (regarding deliberative democracy). I also will discuss the principal criticisms of each of these theories, whether the courts have been influenced by any of them, and, in conclusion, whether it is possible to advance a nonpolitical (i.e., a purely law-based or value-free) theory of free speech.

Type
Research Article
Information
Social Philosophy and Policy , Volume 21 , Issue 2 , July 2004 , pp. 23 - 47
Copyright
© 2004 Social Philosophy and Policy Foundation

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Footnotes

I thank John M. Jurco and LeAnna D. Smack for research assistance, and Mark A. Graber and Ellen Frankel Paul for helpful comments on a draft of this essay. I also thank William and Mary Law School for permitting me to use its library when I was in Virginia and Ohio Northern University College of Law for a summer research stipend.