Assuming Free Speech

Publication Date01 May 2014
DOIhttp://doi.org/10.1111/1468-2230.12071
AuthorAndrew T Kenyon
Assuming Free Speech
Andrew T Kenyon*
Free speech is commonly seen in negative terms as a limitation on government action that restricts
speech. Although there have long been arguments that government also has an obligation to act
in support of free speech – in part because common free speech rationales appear to involve more
than a negative right – much free speech law adopts a negative understanding. This article
examines assumptions within negative approaches to free speech and f‌inds little reason to support
the idea that free speech exists primarily when the state is not directly limiting speech. On this
analysis, arguments about free speech should be reframed. New questions would emerge about
what legal limitations and obligations should be applied in the name of free speech and through
what methods. The limited recognition given to positive free speech by, for example, the
European Court of Human Rights would warrant further development. Free speech would have
important positive and negative aspects.
INTRODUCTION
Much free speech commentary explores various rationales said to underlie free
speech. Three are often considered: free speech is seen as furthering a search for
knowledge; supporting practices of politics, particularly forms of democratic
self-government; and enabling self-development or autonomy. Examples of such
analyses display intricate variations within and between such cognitive, political
and ethical purposes.1Free speech is also typically considered in negative terms
as a bare liberty requiring only the absence of government action. Analyses focus
on how free speech acts as a limitation on government action, in particular
parliamentary or executive action restricting speech. While that is the ‘classical
view’,2free speech need not only be seen in negative terms. There are substantial
analyses arguing that government has an obligation to act for free speech. In part
this arises because the rationales said to underlie free speech appear to involve
more than a negative right. If the rationales are to be fulf‌illed, the absence of
government restrictions on speech is insuff‌icient. However, what can be called
positive free speech has gained relatively little traction in law.
Negative approaches to free speech can involve various assumptions. Here
three are explored and found unconvincing. There seems little reason to support
the idea that free speech exists primarily when the state is not directly limiting
speech. If the analysis has plausibility, then arguments about free speech would
be reframed. Free speech would be understood not merely as a negative legal
*Professor, Melbourne Law School, Joint Director, Centre for Media and Communications Law,
University of Melbourne. This article has benef‌itted from research funding from the Australian
Research Council (DP0985337). Thanks to Sophie Walker for research assistance.
1 Robert Post has used these adjectives to describe common First Amendment rationales: R. C.
Post, Democracy, Expertise and Academic Freedom: A First Amendment Jurisprudence for the Modern State
(New Haven, Ct: Yale University Press, 2012) 6.
2 L. Hitchens, Broadcasting, Pluralism and Diversity (Oxford: Hart Publishing, 2006) 39.
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© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(3) MLR 379–408
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
right, but also in positive terms. New questions would emerge about what legal
obligations should be applied in the name of free speech and through what
methods. Free speech would no longer be assumed to exist when government
censorship is absent. The recognition given to positive aspects of free speech by,
for example, the European Court of Human Rights would deserve further
development. Positive free speech would be seen less as somewhat an anomalous
add-on arising only in particular circumstances, than as a central element existing
alongside concerns about legal limitations on speech. Free speech would have
important positive and negative aspects.
Assumptions underlying the idea that free speech is only or primarily negative are
examined in the next section. Those assumptions appear to be implausible or
dependent on empirical questions about the relative harmfulness of government
action. Effects of government action in one area – public media – are then consid-
ered, drawing on theoretical research into commercial media performance and
empirical research into media content and public knowledge. The research shows
that some forms of government action can usefully support rationales said to underlie
free speech. This suggests free speech should be understood as having positive and
negative aspects. Earlier literature about positive aspects of free speech is then used
to outline free speech as containing two aspects: non-censorship and diversity of
voices.3Some comments are then offered about the Internet, with caution being
suggested against it being seen necessarily to change the analysis in substance.
There are three further points to note by way of introduction. First, the
approach here follows much of the literature in focussing on democratic forms
of political organisation. That provides a relatively straightforward path for
analysis, and offers material of potential relevance in many formal democratic
systems. However, the democratic focus should not be taken to exclude other
rationales for speech or other political forms. Similar approaches appear to be
open for other common free speech rationales, and could also be developed in
relation to work that explicitly considers free speech in non-democratic soci-
eties.4The audience interest that is implicit in much of the self-government
analysis offered here is not irrelevant in other free speech rationales; for example,
a diverse communicative environment appears to be important in supporting
interests in self-development.
Second, the analysis considers free speech as mediated speech, largely in terms
of national mass media. Much but not all of the work drawn on here deals with
print and broadcast media, and largely takes a national focus, ref‌lecting times
when media was more easily, if still erroneously, thought of as only domestic.
The material is a useful place to begin in exploring positive and negative aspects
of free speech. However, even if the analysis here is accepted substantial matters
would remain for future consideration. These would include the effects of
transformations wrought by digital and especially networked communications –
3 Using the terminology of Judith Lichtenberg, ‘Foundations and Limits of Freedom of the Press’
in J. Lichtenberg (ed), Democracy and the Mass Media: A Collection of Essays (Cambridge: CUP,
1990) 102.
4 See eg P. Chevigny, More Speech: Dialogue Rights and Modern Liberty (Philadelphia: Temple
University Press, 1988) which develops an argument for speech based on the nature of language
and social problem solving.
Assuming Free Speech
© 2014 The Author. The Modern Law Review © 2014 The Modern Law Review Limited.
380 (2014) 77(3) MLR 379–408

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