In the previous chapters we have taken a look at the variety of circumstances in which claims of freedom of expression might be invoked and at the variety of interests that government might be pursuing through the allegedly infringing law or governmental action. We have attempted to glean from those myriad cases some covering principle that might closely fit and justify our intuitions about those cases and yet remain faithful to the requirement of evaluative neutrality that must lie at the core of freedom of expression. Our attempts in this regard, however, have been unsuccessful. Again and again we have had to balance freedom of expression against harm to some other interest, and evaluative neutrality has forced us in every case to give expression either overriding weight or zero weight in the balance, resulting in a right of freedom of expression that is either too strong or ineffectual.

In this chapter we shall look at freedom of expression from the top down, so to speak, rather than from the bottom up. We shall look at various theories of freedom of expression that have been advanced and see whether any one of them is capable of nonarbitrarily supporting a human right without at the same time producing counterintuitive results.

Consequentialist Theories of Freedom of Expression

One family of theories attempts to justify a right of freedom of expression by pointing to various good consequences that such a right will bring about.