Comment on Baker's Autonomy and Free Speech
Scanlon, T. M., Constitutional Commentary
In approaching this comment I am conflicted in two ways. First, I have always been a great admirer of Ed Baker and his work, but I will be focusing mostly on those points on which we disagreed. Second, my relation to the autonomy theories of freedom of speech is ambiguous. I agree with Ed Baker in taking autonomy theories to be superior to democracy-based accounts, which are their main systemic rival, and I myself once offered a theory of freedom of expression that gave a central place to autonomy. But I have come to believe that theory to be mistaken in important respects, and, more generally, to believe, for reasons that I will explain, that the concept of autonomy is not a helpful one.
The idea that there is a right of freedom of speech depends on the belief that important interests are threatened if the state has unregulated power to restrict expression. The interests in question are, on the surface at least, various. Some of these interests are political in the sense of having to do with elections, legislation and so forth. These include, at least, the interests of participants' expression in having opportunities to criticize public officials, to influence public policy and legislation, and to participate in electoral politics. Beyond these narrowly political interests, people also have interests in having opportunities to communicate with others who share their values having to do with art, religion, science, philosophy, sex and other important aspects of personal life, and in having opportunities to express these values to others who may not share them, in hopes of influencing them, and thereby shaping the mores of their society, or just in order to bear witness to these values by giving them public expression. People also have interests, as audience members, in having access to information and opinion and to expression by others on all the subjects I have listed. Finally, people have interests, as third parties, in having the political, economic, and social benefits of a society in which our fellow citizens' participant and audience interests are fulfilled.
One central task of theoretical reflection on freedom of speech is that of clarifying these interests: understanding what they are, why they are important, and in what ways they are at stake when restrictions on expression are in question. Two types of theories offer systematic characterizations of these interests.
Democracy-based theories identify the interests at stake in freedom of expression as based in the preconditions of democratic government, or in the conditions required for us to fulfill our roles as citizens. Autonomy-based theories identify these interests as reflecting the value of individual autonomy, and see the right of freedom of speech as something required by respect for autonomy.
Systematic accounts offer two possible advantages. First, they may provide a more secure foundation for freedom of speech by grounding the interests in question in a single value that it is more difficult to doubt or deny. Second, by providing a unified account of these apparently diverse interests they may provide a clearer understanding of their nature and importance, which may provide guidance in cases in which they need to be balanced against one another or against other concerns.
Democracy-based theories in particular can seem appealing for the first of these reasons. By grounding the restrictions on majority rule that a right of freedom of expression involves in the conditions of legitimacy of the democratic process itself, they counter the objection that these restrictions are illegitimate because they are "counter-majoritarian." I agree with Ed Baker's conclusion that, despite this appeal, democracy-based theories cannot account for the full range of expressive activities protected by freedom of speech. The requirements of democratic rule comprise one important class of interests protected by freedom of speech. …