NEGATIVE — DISADVANTAGE — FREE SPEECH 183
FREE SPEECH NEEDS TO BE ABSOLUTE
FREE SPEECH SHOULD BE ABSOLUTE TO PROTECT PERSONAL LIBERTY
Steven J. Heyman, Associate Professor of Law, Chicago-Kent College of Law, "RIGHTING THE BALANCE: AN INQUIRY INTO THE FOUNDATIONS AND LIMITS OF FREEDOM OF EXPRESSION," Boston University Law Review, December, 1998, 78 B.U.L. Rev. 1275 , EE2001-JGM, P.
An alternative argument appeals not to democratic self-government but to individual liberty. As Thomas Emerson puts it, "the purpose of society, and of its more formal aspect the state, is to promote the welfare of the individual." n186 A person has a "right to express his beliefs and opinions" both as an individual and as a member of the community. n187 For this reason, "to cut off his search for truth, or his expression of it, is... to elevate society and the state to a despotic command and to reduce the individual to the arbitrary control of others." n188 Emerson concludes that, while a "society may seek to achieve other or more inclusive ends," such as justice, equality, or the self-fulfillment of its citizens, it generally may not do so by suppressing individual expression, which must be afforded "full protection" under the First Amendment. n189
FREE SPEECH SHOULD BE ABSOLUTE BECAUSE IT IS NECESSARY FOR DEMOCRATIC SELF-GOVERNMENT
Steven J. Heyman, Associate Professor of Law, Chicago-Kent College of Law, "RIGHTING THE BALANCE: AN INQUIRY INTO THE FOUNDATIONS AND LIMITS OF FREEDOM OF EXPRESSION," Boston University Law Review, December, 1998, 78 B.U.L. Rev. 1275 , EE2001-JGM, P.
Other absolutist arguments avoid balancing and instead contend that freedom of speech has categorical priority over other social interests. For example, Alexander Meiklejohn contends that our society's most fundamental purpose is its commitment to democratic self-government. n182 Political deliberation orders all other activities and determines their value. n183 It therefore has "an authority over them all which is wholly incongruous with the notion that one of them, or all of them together, might be balanced against it." n184 It is on these grounds that "the absoluteness of the First Amendment rests." n185
BECAUSE OF THE FLAWS OF MANY FIRST AMENDMENT THEORIES, MANY ADVOCATE A POLICY OF ABSOLUTISM
Steven J. Heyman, Associate Professor of Law, Chicago-Kent College of Law, "RIGHTING THE BALANCE: AN INQUIRY INTO THE FOUNDATIONS AND LIMITS OF FREEDOM OF EXPRESSION," Boston University Law Review, December, 1998, 78 B.U.L. Rev. 1275 , EE2001-JGM, P. 1307-8
The statist view would allow government broad power to regulate speech in the same way that it regulates conduct. n176 Although this approach affords protection to the social interests that may be injured by expression, it provides little or no protection to freedom of speech. For this reason, it is clearly inadequate as an interpretation of the First Amendment.
By contrast, the civil libertarian view seeks maximal protection for free expression (and other individual rights) against state power. Yet just as statism fails to define the bounds of that power, civil libertarianism is unable to identify appropriate limits to free speech. Since it no longer appears possible, within a modern framework, to distinguish between legitimate and illegitimate restrictions, the modern defense of free speech tends toward absolutism.
Arguments for absolutism have taken a variety of forms. The most straightforward relies on a literal reading of the First Amendment. n177 De spite its great rhetorical force, this approach is unconvincing, for it is not required by the text and has doubtful support in the original understanding. n178