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Free Speech and Human Dignity

Free Speech and Human Dignity

Copyright Date: 2008
Published by: Yale University Press
Pages: 320
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  • Book Info
    Free Speech and Human Dignity
    Book Description:

    Debates over hate speech, pornography, and other sorts of controversial speech raise issues that go to the core of the First Amendment. Supporters of regulation argue that these forms of expression cause serious injury to individuals and groups, assaulting their dignity as human beings and citizens. Civil libertarians respond that our commitment to free speech is measured by our willingness to protect it, even when it causes harm or offends our deepest values.

    In this important book, Steven J. Heyman presents a theory of the First Amendment that seeks to overcome the conflict between free speech and human dignity. This liberal humanist theory recognizes a strong right to freedom of expression while also providing protection against the most serious forms of assaultive speech. Heyman then uses the theory to illuminate a wide range of contemporary disputes, from flag burning and antiabortion demonstrations to pornography and hate speech.

    eISBN: 978-0-300-14822-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. List of Tables
    (pp. ix-ix)
  4. Acknowledgments
    (pp. x-xii)
  5. Introduction
    (pp. 1-4)

    The First Amendment right to freedom of expression is a defining feature of American society. Yet the scope and meaning of this right have always been controversial. In recent years, much of the debate has focused on issues like hate speech and pornography. Supporters of regulation argue that such speech causes serious injury to individuals and groups and that it assaults their dignity as human beings and citizens. Civil libertarians respond that our commitment to free expression is measured by our willingness to protect it even when it causes serious harm or offends our deepest values. When the issue is...

  6. Part One. History

    • 1 Free Speech and the Natural Rights Tradition
      (pp. 7-22)

      In part 1 of the book I explore the natural rights tradition and its impact on the American understanding of freedom of speech. After tracing the rise of Lockean thought in seventeenth- and eighteenth-century England, I show how this view informed the adoption of the First Amendment as well as the first state declarations of rights. I then examine the controversy surrounding the Sedition Act of 1798, the first major debate over the meaning of the First Amendment. Next, I sketch the ideological background of the Fourteenth Amendment, which provides the basis for applying the First Amendment to the states....

    • 2 The Transformation of Free Speech Jurisprudence
      (pp. 23-34)

      The natural rights background of the First and Fourteenth Amendments suggests a principle that is capable of providing the basis for a normative theory of freedom of expression. This principle holds that free speech is an inherent right that is limited by the rights of other individuals and the community itself. Although this principle was widely accepted when the Bill of Rights and the Reconstruction Amendments were adopted, it no longer holds a central place in American constitutional theory or doctrine. Instead, modern jurisprudence understands First Amendment problems in terms of an opposition between free speech and “state interests.” In...

  7. Part Two. A Rights-Based Theory of the First Amendment

    • 3 The Basic Approach
      (pp. 37-46)

      In this part of the book I develop a rights-based or liberal humanist theory of the First Amendment. On this view, the Constitution does not protect freedom of speech merely for instrumental reasons or because of its tendency to promote various individual or social interests. Instead, free speech is an inherent right which is rooted in human dignity and autonomy. But those values also give rise to other fundamental rights, including personal security, privacy, reputation, citizenship, and equality. As a general rule, speakers have an obligation to respect those rights. Speech that violates them is wrongful and subject to regulation...

    • 4 Free Speech in a Framework of Rights
      (pp. 47-68)

      In the previous chapter, I outlined some of the main ideas of a rights-based or liberal humanist approach to the First Amendment. My goal in the next two chapters is to develop those ideas into a general theory of the foundations and limits of freedom of expression. On this view, rights reflect what it means for human beings to be free in different areas of life, including (1) the external world; (2) the internal domain of thought and feeling; (3) the political, social, and cultural life of the community; and (4) the intellectual and spiritual realm. These four elements correspond...

    • 5 Conflicts of Rights
      (pp. 69-80)

      On the view I am developing, the liberties protected by the First Amendment exist within a broader framework of rights based on human dignity and autonomy. As a rule, speakers should have a duty to respect the rights of others. Some cases, however, pose difficult conflicts between free speech and other rights. In this chapter, I first discuss how such conflicts should be resolved in general. I then consider the roles that legislatures and courts should play in this area. Finally, I address two important objections to this theory of the First Amendment.

      Although free speech must be exercised with...

    • 6 Content Neutrality and the First Amendment
      (pp. 81-100)

      The preceding chapters formulated a rights-based or liberal humanist theory of the First Amendment. In this chapter, I use the theory to evaluate the Supreme Court’s current jurisprudence, which is based on the doctrine of content neutrality.

      The origins of this doctrine may be found inPolice Department v. Mosley(1972). For some months, a postal worker named Earl Mosley conducted a lonely vigil on the sidewalk outside a Chicago public school, protesting against racial discrimination. After the city council banned picketing in front of schools, Mosley challenged the constitutionality of this ordinance, urging the Court to hold that all...

  8. Part Three. Contemporary Controversies

    • 7 Subversive Speech
      (pp. 103-126)

      In part 2 I developed a general theory of the First Amendment. According to this view, freedom of speech is an inherent right. But the same principles that justify free speech also support other fundamental rights, including personal security, liberty, privacy, reputation, citizenship, and equality. The law can require speakers to respect these rights, except in situations where the value of speech is sufficient to justify the injury it causes. This is the way in which the legal order can best promote human freedom and dignity as a whole.

      In part 3, I apply this approach to a wide range...

    • 8 Speech and Violence
      (pp. 127-148)

      In chapter 7, I began to explore the problem of speech that promotes violence and other forms of unlawful action.¹ Here I want to discuss that problem in depth. I begin with incitement, an issue that lies at the heart of modern free speech jurisprudence. Next, I address two closely related issues: how the First Amendment should apply to threats of violence, and how it should apply to speech that facilitates the commission of crimes. These issues are posed by two of the most hotly contested cases in recent years:Planned Parenthood v. American Coalition of Life Activists(2002), which...

    • 9 Speech and Privacy
      (pp. 149-163)

      While there is broad agreement that the Constitution should not protect speech that threatens or incites violence, the problem of dignitary or emotional harm is far more controversial. Many people would assert that, under the First Amendment, speech may never be restricted merely because it offends the sensibilities of others. I have argued, on the contrary, that freedom of expression is limited by other rights and that those rights are founded on respect for the autonomy and worth of human beings. It follows that the law should be allowed to safeguard not only external rights to life, liberty, and property,...

    • 10 Hate Speech
      (pp. 164-183)

      In recent decades, no aspect of First Amendment jurisprudence has generated more controversy than the problem of hate speech—expression that abuses or degrades others on the basis of such characteristics as race, religion, and gender.¹ Some states and localities, as well as many colleges and universities, have sought to regulate such speech on the ground that it causes serious injury to its targets and to the community itself. Critics respond that, while the society should do everything it can to combat bigotry and prejudice, it may not do so by curtailing freedom of expression. In struggling with this problem,...

    • 11 Pornography
      (pp. 184-205)

      How should the First Amendment apply to sexually explicit material in magazines, books, films, and electronic media such as the Internet? Conservatives and liberals have long been divided over this question. The conservative position prevailed inMiller v. California(1973) andParis Adult Theatre I v. Slaton(1973), which reaffirmed the power of the states to regulate obscene material “to protectthe social interest in order and morality.” In an opinion by Chief Justice Burger, the Supreme Court declared that state legislatures reasonably could conclude that the distribution of such material had a corrupting and debasing effect on individual character,...

  9. Conclusion
    (pp. 206-207)

    Law is not merely an instrument of social control but an embodiment of our fundamental values and aspirations. The law reflects our image of ourselves as individuals and as a community. At the same time, by shaping our lives in particular ways, the law seeks to realize that image in the social world.

    As Americans, we conceive of ourselves as being free. Although the American idea of freedom is sometimes equated with negative liberty or the absence of governmental oppression, it is actually much broader than that.¹ Our conception of liberty includes the ability to direct our own lives, to...

  10. Appendix: An Overview of Free Speech and Other Rights
    (pp. 208-210)
  11. Notes
    (pp. 211-290)
  12. Index
    (pp. 291-305)