The modern liberal state arose as part of a rebellion against the entrenched hierarchies of rank, power, and privilege that had characterized the feudal order of European society. Under that order, a person's prospects in life were determined almost entirely by his status at birth. The individual lacked the liberty to change his social and economic ranking and was rendered dependent on the will of those in higher-ranking positions. It was against this inclusive, closed, and ascriptive system of inequality and dependence that the proponents of the liberal state fought.

I will be arguing against a school of thought and an epistemology. The school of thought is ‘scientific neorealism’, as it is called in the study of international relations. This perspective is shaped by the insistence that ethics and international politics have nothing to do with one another, save insofar as morality is brought in as window dressing in order to disguise what is really going on: the clash of narrowly self-interested powers. The world of international relations is construed as a zone of self-help in a Hobbesian clash of a war of all against all. For more than twenty-five years now, I have argued that, to the contrary, ethics does not stop at the water's edge and morality is not silent during war.

In this essay, I offer a utilitarian perspective on humanitarian intervention. There is no generally accepted precise definition of the term ‘humanitarian intervention’. I will provisionally, and roughly, define humanitarian intervention as the use of force by a state, beyond its own borders, that has as a purpose or an effect the protection of the human rights of noncitizens or the reduction of the suffering of noncitizens.

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.

“ 'Free speech' is just the name we give to verbal behavior that serves the substantive agendas we wish to advance”—or so literary theorist and professor of law Stanley Fish has claimed. This cynical dictum is one of several skeptical challenges to freedom of speech that have been extremely influential in the American academy. I will follow the skeptics' lead by distinguishing between two broad styles of critique: the progressive and the postmodern. Fish's dictum, however, like many of the bluntest charges, belongs to neither class exclusively. As an initial characterization of the distinction between these critiques, progressive skepticism claims that freedom of speech is a bad thing, while postmodernist skepticism claims it to be conceptually impossible. Both forms of skepticism hold the classical liberal endorsement of free speech and condemnation of censorship to be both naive and reactionary. Skepticism about free speech flourishes at universities in the United States and is especially well represented among professors at the country's most prestigious law schools. As legal scholar Robert Post approvingly observes: “Liberated from traditional inhibitions against official suppression of speech, the left has mobilized to pursue a rich variety of political agendas.”

A variety of arguments have been advanced that deliberation should be at the center of any good political regime in which there is popular self-government. Deliberation is to be the basis for lawmaking, that is, for the making of the collectivity's binding decisions. Thus, John Rawls says, “[O]f course, actual constitutions should be designed as far as possible to make the same determinations as the ideal legislative procedure.” This procedure, in turn, is defined as having laws that result from “rational legislators … who are conscientious, trying to follow the principles of justice as their standard.” These legislators “are not to take a narrow or group-interested standpoint.” Joshua Cohen broadly agrees with Rawls and characterizes Rawls's view as one that argues for a democratic politics that is built around public deliberation. Cohen says (agreeing with Rawls) that “an ideal pluralist scheme, in which democratic politics consists of fair bargaining among groups each of which pursues its particular or sectional interest, is unsuited to a just society.” John Dryzek shares these views and comments that the “essence of democratic legitimacy should be sought … in the ability of all individuals subject to a collective decision to engage in authentic deliberation about that decision.” Others have argued along similar lines, including James Bohman, Amy Gutmann and Dennis Thompson, David Gauthier, and Jurgen Habermas.

If we wish to assess the morality of elected officials, we must understand their function as our representatives and then infer how they can fulfill this function. I propose to treat the class of elected officials as a profession, so that their morality is a role morality and it is functionally determined. If we conceive the role morality of legislators to be analogous to the ethics of other professions, then this morality must be functionally defined by the purpose that legislators are to fulfill once in office. Hence, the role morality of legislators will largely be determined by our theory of representation. We will need not a normative account of their role, but an empirical explanatory account. In David Hume's terms, the morality of role holders is one of “artificial” duties, that is to say, duties defined by their functional fit with the institutional purposes of a profession. Our most difficult problem, therefore, is to understand the role of our elected representatives.

Free speech has historically been viewed as a special and preferred democratic value in the United States, by the public as well as by the legislatures and courts. In 1937, Justice Benjamin Cardozo wrote in Palko v. Connecticut that protection of speech is a “fundamental” liberty due to America's history, political and legal, and he recognized its importance, saying, “[F]reedom of thought and speech” is “the matrix, the indispensable condition, of nearly every other form of freedom.” It is likely notable that in the Bill of Rights free speech is protected in the First Amendment rather than later.

In this paper I discuss one facet of the multifaceted question of whether strong protection for intellectual property rights—in particular, rights in expressive works and in information in digital form—is, in principle, at odds with the First Amendment guarantee of freedom of speech. The question has assumed particular urgency in recent years because the Internet and digital technology seem to have rendered formerly serviceable legal boundaries obsolete, and doctrines that sufficed in a print-on-paper world no longer seem adequate. Vigorous debate rages about what has come to be referred to as ‘propertization’. Commentators ask whether, and how, and based upon what empirical assumptions, old boundaries ought to be redrawn and doctrines modified. The academic literature tilts heavily away from endorsing strong property rights in digitized content, and toward expanded user rights and intensified First Amendment review in copyright cases. This paper tilts in a different direction. It swims against the academic tide not only in the direction of its analysis but, more importantly, in the kinds of questions it considers relevant and in its analytical focus. Readers should understand that the analysis is deliberately provisional and suggestive rather than completely developed, and the conclusions are tentative. The paper does not purport to be a definitive study that draws confident conclusions. It is offered as speculation and in the hope that readers will approach it in that spirit.

Until recently, with one historical exception, America was able to take for granted a coherent national culture and identity. Successive waves of immigrants entered a country that assumed that their ultimate assimilation was a desirable, not an oppressive, outcome. The United States did not prove equally hospitable to everyone: some groups endured enormous hardships on their way to a fuller realization of America's great promise of opportunity and freedom. Yet, throughout U.S. history, the dream of common purpose and community propelled the collective desire to live up to this promise and provided the framework within which progress was understood and made.

What are our political obligations to future generations? How does morality suggest that we weight current interests against future interests? Do politics or markets place greater weight upon interests in the very distant future? How should we discount future costs and benefits?

Constitutional law in the United States is, for most practical purposes, the product of ‘judicial review’, the power of judges to disallow policy choices made by other officials or institutions of government, ostensibly because those choices are prohibited by the Constitution. This extraordinary and unprecedented power, America's dubious contribution to the science of government, has made American judges the most powerful in the world, not only legislators but super-legislators, legislators with virtually the last word. Because lawmaking power divorced from popular will is tyranny, most states have attempted to reconcile the lawmaking power of judges with representative self-government by subjecting all or some judges to some form of popular election. In all but four such states, judges, encouraged and supported by their fellow lawyers in the organized bar—would-be judges and beneficiaries of judicial power—have responded by adopting codes of judicial ethics that limit what candidates for election to judicial office are permitted to say. The effect is to undermine elections as a control on judicial power by limiting criticism of judicial activism, the misuse of judicial power.

Free speech has been treated as a preeminent constitutional right in the United States for more than half a century. The rights of property owners, on the other hand, have received little constitutional protection since the New Deal period of the 1930s. This modern dichotomy is particularly striking because it obscures an older constitutional tradition that equated economic liberty and freedom of expression. This tradition saw both property rights and speech rights as essential to the protection of personal freedom by restraining the power of government.

In 1995 the United States National Security Agency (NSA), the Central Intelligence Agency (CIA), and the Federal Bureau of Investigation (FBI) made public the story of a forty-year American intelligence operation code-named Venona. Shortly after the Nazi-Soviet Pact in 1939, American military intelligence had ordered companies that were sending and receiving coded cables overseas, such as Western Union, to turn over copies to the U.S. government. Hundreds of thousands of cables were sent or received by Soviet government bodies. Beginning in 1943, spurred by rumors and concerns that Stalin might conclude a separate peace with Hitler, the U.S. Army's cryptographic section began work trying to read these Russian cables. It had very limited success until 1946, by which time the Cold War was already underway. Some twenty-nine hundred cables dealing with Russian intelligence activities from 1942 to 1946 eventually were decrypted successfully in whole or in part as a result of Soviet technical errors in constructing and using “one-time pads” that American code-breakers were able to exploit. These cables implicated more than three hundred Americans as having been involved with Soviet intelligence services during World War II, a time when the United States and the USSR were allies.

The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. Freedom of speech would be of little practical consequence if the government could suppress ideas by bluntly prohibiting individuals from gathering with others who share their perspective. Freedom of expression must consist of more than the right to talk to oneself.

A more provocative subject than “lying in politics” is difficult to imagine. Everybody, from the proverbial “Joe Sixpack” to ivory-tower philosophers, can wax eloquently on the subject, if only because easy-to-find, shocking (and occasionally sexually “juicy”) examples abound. If moral outrage were judged an essential vitamin, then condemning dishonesty undoubtedly guarantees a daily megadose. Unfortunately, at least for those who crave self-indulgent outrage, the anti-lying case is less than 100 percent compelling. It is a quagmire of the first order, if only because those who cherish frankness also usually confess to lying. Hannah Arendt once suggested that lies are a necessary and justifiable tool of the statesman's trade. Formulating damnation criteria invites mind-boggling paradoxes, and strident defenders of truth-telling, with scant exception, admit that falsehoods are “sometimes” permitted for “good” reasons. And what might be these “good reasons”? Who can say for sure? Centuries of erudite scholarship on this point might be encapsulated as “Lying to me is bad, but I can consent to deceiving others for noble purposes, as artfully decided by myself.”

In recent years it has become increasingly common in the United States and in the United Kingdom for newspapers and other media to expose problematic aspects of the private lives of political (and other public) figures; or, since the facts may already be in the public domain, to draw wider attention to them and to make them the subject of commentary. These “problematic aspects” may include past or continuing physical or psychological illness, eating disorders, drug and alcohol abuse or dependence, financial difficulties, family conflict, infidelity, or certain sexual proclivities of both the political figures themselves and of their family members or intimates. In the United States, the most prominent cases are probably those of President Bill Clinton in relation to a series of alleged extramarital affairs leading up to the scandal involving White House intern Monica Lewinsky, and of President John F. Kennedy, also in relation to marital infidelities. The latter exposure was, of course retrospective, as were revelations of similar matters concerning other presidents and holders of high office. Up until the mid-1960s, while it was sometimes known to the press that politicians had “problems” in their private lives, it was rare for these to be made public. Sometimes it might be reported, or more likely hinted, that a figure had a “complex” or “difficult” personal life, and the public was left to infer whatever it might from this (generally concluding that infidelity, alcoholism, or both, were probably at issue). The recent culture of exposure results from a combination of factors, including changed attitudes toward public discussion of sexual conduct, changed standards of sexual behavior, recognition of the scale of Cold War espionage and of its practice of blackmail, a general decline in social deference, a threat to the print media posed by the growth of television, and the rise of satirical entertainment. All of these elements were present in the case that marked the establishment of the culture of exposure in the U.K.: the ‘Profumo scandal’ of 1963. For those unaware of this episode, it may be sufficient to say that it involved the then-secretary of state for war, members of the British aristocracy, a Soviet naval attaché, and a number of “society” call girls, and that it contributed to the resignation of Prime Minister Harold Macmillan and the subsequent fall from power of the Conservative Party. In the United States, the culture of exposure developed somewhat later and took shape in the period of the Watergate scandal, which damaged the American public's perception of the governing classes just as the Profumo scandal had in Britain.

My thesis is simple. The right of informational privacy, the great modern achievement often attributed to the classic Samuel Warren and Louis Brandeis article, “The Right to Privacy” (1890), asserts an individual's right not to have private personal information circulated. Warren and Brandeis claimed that individual dignity in a modern society requires that people be able to keep their private lives to themselves and proposed that the common law should be understood to protect this dignity by making dissemination of private information a tort. As broadly stated, this right not to have private information distributed directly conflicts with a broadly conceived freedom of speech and of the press. My claim is that, in cases of conflict, the law should reject the Warren and Brandeis innovation. Speech and press freedom should prevail; the privacy tort should be ignored. This conclusion requires a normative argument concerning the appropriate basis and status of speech freedom that this essay will not really provide but for which I have argued elsewhere. Here, instead, I will describe that theory of speech freedom, explore its implications for informational privacy, and finally suggest some reasons to think that rejection of the privacy tort should not be so troubling and is, in fact, pragmatically desirable.

A fierce debate about civic education in American public schools has erupted in response to the terrorist attacks of September 11, 2001. Many liberals and conservatives, though they disagree strongly about which civic virtues to teach, share the assumption that such education is an appropriate responsibility for public schools. They are wrong. Civic education aimed at civic virtue is at best ineffective; worse, it is often subversive of the moral purpose of schooling. Moreover, the attempt to impose these partisan conceptions of civic virtue on America's students violates the civic trust that underpins vibrant public schools.

The year 1999 witnessed the horrific shootings at Columbine High School in Littleton, Colorado, where two teenage boys killed twelve of their classmates, a teacher, and then themselves. What lessons are to be learned from this tragedy? Certainly, it tells us that in a nation with approximately one third of a billion people, even an infinitesimal percentage of mentally unstable persons can create mayhem. Are there other lessons?