This chapter primarily examines US legal writing on free speech that uses ideas of positive freedom. The examples show how positive dimensions of free speech can be argued for even where formal law is highly negative in approaching the freedom. The examples contain repeated calls for diverse public speech that, in some way, is promoted by government. They are aware that speech arises within existing practices of communication, practices that constrain as well as enable speech; the freedom involves dialogical, social or structural interests, not only individual ones; and government always affects opportunities for speech, not only when it directly restricts speech. While the examples link speech with democracy, many do not address any communicative preconditions to democracy, such as an architecture for speech inhering in the idea of democracy itself. However, some legal writing does address just such preconditions, providing a useful introduction to the next two chapters that consider examples of courts acting in support of positive free speech precisely because the freedom is understood to be a precondition of democracy.

‘Positive’ in positive free speech can mean enabled freedom or a legally (and perhaps judicially) protected right. Both meanings can be important. Understanding arguments for positive free speech and how some courts protect it reveals what the freedom entails, provides ideas and techniques for various constitutional actors, and suggests the improbability of legislatures alone protecting positive free speech enough. A partial framework for the positive freedom is taken from earlier chapters, drawing on media studies models of diverse media, the freedom’s democratic basis, analyses of positive human rights, political freedom, the US First Amendment, and constitutional law from Germany and France. Questions about democratic legitimacy and judicial rights protection are examined. Criticisms of judicial rights review can presuppose effective public speech, but such speech appears unlikely without legal protection of positive free speech which may well require judicial action, although questions remain about such action’s effectiveness. Finally, points are raised about applying historical lessons of this study to the changed contemporary environment for public speech.