AFFIRMATIVE — DISADVANTAGE — FREE SPEECH — ANSWERS 185

PROTECTION OF FREE SPEECH IS DEPENDANT ON OTHER RIGHTS

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.

The argument may now be revised to assert that it is freedom of speech as a whole that has precedence over other social interests. n192 Once more, however, the same kinds of arguments can be made for the priority of other rights. For instance, individuals cannot speak freely if they are not secure against violence. In this way, free speech depends on the right to personal security. Again, it does not necessarily follow that the latter is more fundamental than the former. Instead, just as individual and political free speech turned out to be interdependent, the same is true of free speech and other fundamental rights. It is only when these rights are taken as a whole, as a system of constitutional liberty, that they have priority over other interests. n193

FREE SPEECH MAY BE MORE IMPORTANT THAN STATE INTERESTS BUT NOT OTHER FUNDAMENTAL RIGHTS

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.

Emerson's view is also subject to a more general objection which applies to Meiklejohn's as well. While such arguments may establish the priority of free speech over social interests in general, they fail to demonstrate its priority over other fundamental rights, because the same sorts of arguments can be made on behalf of those rights. For example, while it is true that democratic self-government depends on political free speech, the latter seems to depend on individual liberty of speech and thought. Unless they enjoy such liberty, individuals will be incapable of participating in self-government. It may seem, therefore, that individual free speech is a more fundamental right than its political counterpart. In another sense, however, the reverse may be true: as Meiklejohn contends, individual liberties may depend on the existence of political freedom. In this way, it becomes clear that these two aspects of free speech are interdependent, and that neither is more basic than the other. Freedom of speech must be viewed as a unified system, which includes both individual and collective elements. n191

BECAUSE SOCIETY IS MORE THAN A COLLECTION OF INDIVIDUALS, ABSOLUTIST ARGUMENTS FAIL

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.1309-1310

Although this argument persuasively shows that free speech rights may not be subordinated to social welfare in general, it fails to recognize the possibility that individuals may also have other fundamental rights, the protection of which may justify regulation of speech. In this respect, Emerson's references to the liberty and welfare of "the individual" are somewhat misleading, for many free speech cases implicate the rights of more than one person. The proposition that one's rights may not be restricted for the sake of social welfare does not entail that they may not be limited to protect other rights. n190

EXCESSIVE DEFENSE OF FREE SPEECH THREATENS FUTURE FREE SPEECH

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.

In summary, while civil libertarianism provides strong protection for free speech, it is unable to identify the limits of that freedom. This point might be of little concern if it simply meant that free speech were overprotected at the expense of social welfare in general. As civil libertarians point out, this may properly be regarded as "the price to be paid for constitutional freedom." n196 For three reasons, however, the inability to identify limits should be of concern to civil libertarians themselves. First, the lack of an adequate theory to distinguish justified from unjustified restrictions makes it more difficult to successfully oppose the latter. Second, as we have seen, what modern First Amendment theory labels "social welfare" includes the rights of others. For this reason, a maximalist approach to freedom of speech has the unintended effect of sacrificing other individual rights - rights which, under other circumstances, civil libertarians might themselves defend against infringement by government. n197 Finally, by protecting speech even when it wrongfully invades the rights of others, this approach tends to undermine the normativity of free speech - its character as a right. In this way, an excessive defense of free speech may weaken the legitimacy - and thus the public acceptance - of the very right that it means to defend. n198