Contemporary disputes over the First Amendment often result in deadlock. One side stresses the paramount value of free speech, while the other side points to the harms that particular kinds of speech can cause. It is difficult to see how this impasse can be broken without a more general account of the scope of free expression: a view that integrates both the justifications and the limits of freedom of speech into a coherent whole. This Article makes a start toward developing such a theory. Its central thesis is that freedom of speech is a right that is limited by the fundamental rights of other individuals and the community as a whole. As Part I shows, this idea was regarded as axiomatic at the time the First Amendment was adopted. Eighteenth-century Americans understood freedom of speech in the context of natural-rights and social-contract theory. Free speech was regarded as an inherent right of human nature and republican citizenship. Like all such rights, however, it was bounded by the rights of others. This view provided a standard by which to assess the legitimacy of laws regulating speech. The possibility of such a standard was undermined, however, by the rise of legal positivism and utilitarianism, which repudiated the concept of natural rights. In modern jurisprudence, First Amendment issues were reconceptualized not as conflicts of rights, but as clashes between free speech and "social interests": a term within which the rights of others have been absorbed. When the problem is understood in this way, strong protection for freedom of speech results -- unintentionally but necessarily -- in sacrificing the rights of others, while upholding state interests results in sacrificing freedom of speech. Modern First Amendment theory offers no coherent way out of this dilemma. This is a major reason why contemporary free speech disputes are so difficult to resolve, and why the participants seem condemned to talk past each other. The intractability of such issues suggests that we should consider returning to a rights-based conception of the foundations and limits of freedom of speech. Part II develops the main outlines of such a view, drawing on the liberal natural rights tradition of Locke and Kant as well as on our modern understanding of fundamental rights. The discussion begins with an account of rights as grounded in human liberty. Rights represent what it means to be a free person in various spheres of life -- not only in relation to the external world, but also in one's inner life and its expression to others, in social relationships and participation in the community, and in the intellectual and spiritual realm. These four elements of liberty correspond to the major justifications that have been advanced for freedom of speech: that it is an aspect of external freedom; that it is essential for individual self realization; that it is central to democratic self-government; and that it safeguards the search for truth. But the same principles that underlie freedom of expression also give rise to other rights, such as personal security, privacy, reputation, citizenship, and equality. Because they derive from the same grounds as free speech itself, these rights have the same fundamental status and value. It follows that speech generally must respect these rights. In some instances, however, the value of free speech justifies overriding the rights of others. Part III develops a three-part approach to analyzing such conflicts of rights, using the constitutional law of defamation as an example. Finally, Part IV brings the rights-based theory to bear on two major controversies: whether the First Amendment should protect insults or "fighting words," and whether it should protect hate speech based on race, religion, gender, or other invidious grounds.
Steven J. Heyman,
Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression,
B.U. L. Rev.
Available at: http://scholarship.kentlaw.iit.edu/fac_schol/308