A Thinker-Based Approach to Freedom of Speech
Shiffrin, Seana Valentine, Constitutional Commentary
Many contemporary autonomy theories of freedom of speech champion the perspective and freedom of just one side of the communicative relation--usually, the speaker or the listener(s). Such approaches seem to neglect or subordinate the autonomy interests of the other relevant parties. Other autonomy theories do not privilege one perspective on the communicative relation over another, but strangely treat the speakers' interests and the listeners' autonomy interests as rather discrete entities--disparate constituents both demanding our attention. Both strands gloss over a source of justification for free speech that both connects the two perspectives and recognizes the wider foundations that underpin their value (by contrast with the more narrow connections drawn between them by democracy theories). Specifically, both approaches celebrate one or more external manifestations of thought but do not focus on the source of speech and cognition--namely the thinker herself--and the conditions necessary for freedom of thought. I submit that a more plausible autonomy theory of freedom of speech arises from taking the free thinker as the central figure in a free speech theory. We should understand freedom of speech as, centrally, protecting freedom of thought.
Hence, in this essay, I propose to sketch a particular sort of autonomy theory of freedom of speech, namely a thinker-based foundation for freedom of speech. Although this account does not capture all of the values of freedom of speech or yield a comprehensive theory of freedom of speech, a thinker-based foundation can provide a stronger and more coherent foundation for the most important free speech protections than rival free speech theories, including the more common speaker-based or listener-based autonomy theories. (1)
In saying a thinker-based foundation undergirds the most important free speech protections, I mean 'most important' in a normative sense, and not in the sense that they are necessarily acknowledged as such, or at all, in contemporary free speech doctrine. (2) My paper aims to identify strong theoretical foundations for the protection of free speech but not to provide the best theoretical account of our system or our current practices of protecting (or failing to protect, as the case may be) (3) free speech. Articulating a theory of free speech along the former, more ideal, lines provides us with a framework to assess whether our current practices are justified or not, as well as which ones are outliers. An ideal theoretical approach also supplies both a measure for reform and some structural components to form the framework to assess new sorts of cases.
Which freedom of speech protections figure among the most important is, of course, contested. My position in that debate is that a decent regime of freedom of speech must provide a principled and strong form of protection for political speech and, in particular, for incendiary speech and other forms of dissent, for religious speech, for fiction, art--whether abstract or representational--and music, for diaries and other forms of discourse meant primarily for self-consumption, and for that private speech and discourse, e.g. personal conversations and letters, crucial to developing, pursuing, and maintaining personal relationships. (4)
Further, all of these forms of expression should enjoy foundational protection, by which I mean there should not be a lexical hierarchy of value between them, nor should the protections for some depend dominantly on their playing an instrumental role in securing the conditions for the flourishing practice of another. To put it more pointedly, an adequate free speech theory will avoid the convolutions associated with the more narrow democracy theories of freedom of speech and their efforts to explain why abstract art and music should gain free speech protection. Although a case could be made that the freedom to compose and to listen to Stravinsky is important to developing the sort of open personal and cultural character necessary for democracy to flourish or that it feeds the "sociological structure that is prerequisite for the formation of public opinion," (5) that justification is strained and bizarrely indirect. …