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Ovid’s Fasti explores the way that the Roman calendar organises time and regulates occasions for speech. The old religious calendar was being systematically reorganised by Augustus, and the poem uses this reorganisation as the starting point for an exploration of the way that Augustus is putting ever tighter curbs on free speech. The poet’s own exile becomes the main example of how Augustus attempts to silence opposing or threatening voices.
This chapter examines positive free speech and democracy. It suggests that positive free speech is part of the legitimacy claim of the constitutional democratic form in contemporary societies, rather than being linked to one or other version of democracy, such as libertarian, republican, agonistic or deliberative. Democracy presupposes a freedom of speech with certain qualities: communicatively legitimate democracy involves a basic role for sustained plural public speech, supported by positive and negative dimensions of free speech, and this is true across varied forms of democracy. This does not mean free speech need be a freedom without limits, nor that the analysis can usefully be applied under all formally democratic constitutions. At the least, an independent judiciary and a comparatively strong protection of free speech’s negative dimensions are needed for positive dimensions of free speech to be pursued.
This chapter outlines the structural diversity of public speech that democratic government requires, and the claim that democracy entails positive freedom of communication, not only a negative freedom or liberty. The state has obligations to support communicative freedom; both positive and negative dimensions of free speech need protection for democracy to have substantial communicative legitimacy. This book, often using historical comparative material, examines speech and varied forms of democracy; what it would mean for society to have a voice, formulate judgments and make claims of government that are heard; and free speech law’s role in the voice, judgments and claims. The chapter explains terminology, challenges in the approach and sources used: media studies, human rights, political theory and legal writing and case law. Further possible sources are considered, including analyses based on communication rights and republican freedom. The book is not an exegesis of any one legal system but explores ideas and techniques relevant to positive dimensions of free speech. The aim is show how law should treat positive free speech and raise questions for democratic systems.
The expulsion of party members for the expression of dissent is a common practice in democratic states around the world, which can have momentous consequences for individual parties and the political system at large. In this article, we address the question of whether limitations on party members’ free speech can be defended on normative grounds. Drawing on a conception of parties that sees them as broader membership organisations that allow citizens to exercise political agency in a unique fashion, as well as on insights from the broader normative-theoretical literature on organisations, we build a strong presumptive case that interference with party members’ political freedoms is normatively problematic. Exploring numerous weighty arguments in favour of limiting freedom of speech within parties, we find that none of them provides a knock-down argument against our case. The argument we advance has important implications for contemporary theoretical debates about parties and partisanship, and for the regulation of parties’ internal affairs more generally.
To meet the challenge of mobilizing the nation for war in Europe, the Wilson administration took steps to silence dissent on the home front. In addition to a massive propaganda campaign to rouse public enthusiasm for the war, the government used the Espionage Act (1917) to silence anti-war publications and to arrest pacifists, political radicals, and others accused of making disloyal statements. The government’s campaign against dissenters was upheld in landmark decisions by the Supreme Court, supporting the imprisonment of hundreds of anti-war speakers, most notably the socialist leader Eugene V. Debs. While federal government repression encouraged similar laws at the state level as well as a wave of vigilante violence against pacifists and anti-war radicals, the arrests also led some free speech advocates to form the American Civil Liberties Union, one part of a wider campaign that sought amnesty for imprisoned dissenters.
“Punishing Disrespect,” bemoans the loss of free speech. Here’s another constitutional right that I dare not share with the young people at risk for police stops: their First Amendment right to tell an officer what they think about his harassment. If the Supreme Court was right when it stated that the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state,” then stop-and-frisk threatens our very republic. Police routinely punish disrespect. Masculinity theorists describe the policing profession as hypermasculine and resistant to change. Coercing respect lies deep within police culture, and punishments range from arrest to brutality. Just as wolf whistles and other forms of sexual harassment on the streets remind young women that they don’t control their bodies, repeated stops and frisks convey a similar message to young men of color. The culture of coercion underpins all the aggressive policing stories throughout this book and makes it almost impossible to exercise rights during police stops. Any exercise of any right might be viewed as disrespect.
Early in the history of liberalism, its most important proponents were concerned with freedom of religion. As polities and individuals now accept a dizzying array of religions, this has receded to the background for most theorists. It nonetheless remains a concern. Freedom of speech is a similar concern and very much in the foreground for theorists looking at the current state of academia. In this essay, I argue that inappropriate limits to freedom of religion and inappropriate limits to freedom of speech—especially in the form of de-platforming on college campuses—both have, as one of their effects, what I call harms of silence. This means we ought not have those limits, so should seek to change them where they exist.
Moral grandstanding, or the use of moral talk for self-promotion, is a threat to free expression. When grandstanding is introduced in a public forum, several ideals of free expression are less likely to be realized. Popular views are less likely to be challenged, people are less free to entertain heterodox ideas, and the cost of changing one’s mind goes up.
This introduction discusses the debate surrounding offensive language both past and present. We look at the way people talk about being offended, or not being offended, and issues of free speech and social justice.
The move to a more digital, more mobile, and more platform-dominated media environment represents a change to the institutions and infrastructures of free expression and a form of “democratic creative destruction” that challenges incumbent institutions, creates new ones, and in many ways empowers individual citizens, even as this change also leaves both individuals and institutions increasingly dependent on a few large US-based technology companies and subjects many historically disadvantaged groups to more abuse and harassment online. This chapter aims to step away from assessing the democratic implications of the internet on the basis of individual cases, countries, or outcomes, but rather to focus on how structural changes in the media are intertwined with changes in democratic politics.
In current debates over the Internet’s impact on global democracy, the prospect of state regulation of social media has been proffered as a solution to problems like fake news, hate speech, conspiracy-mongering, and similar ills. For example, Mark Warner, a senator in the US Congress, has proposed a bill that would enhance privacy protections required of internet platforms, create rules for labeling bot accounts, and change the legal terms of the platforms’ legal relationship with their users. In Europe, regulation has already been enacted in the form of the European Union’s General Data Protection Regulation and new laws like the Network Enforcement Law (NetzDG). This chapter will survey this rapidly developing field, putting current efforts of liberal democracies to regulate internet content in the broader perspective of legacy media regulation. As we will see, there are very different national approaches to this issue among contemporary liberal democracies, and in many respects the new internet regulations, actual and proposed, are extensions of existing practices.
What words mean depends on contexts: the speaker(s), the audience, the interests at stake, relevant history. Many saw shifting Cornell Plantations to Botanic Gardens as excessively PC, but there were multiple reasons for abandoning plantations. Just considering proposals to abandon words like felon, convict, and parolee opened some minds to new possibilities for people now or formerly incarcerated. Considering the recently minted label Latinx has prompted not only appreciation of new gender options but also new futures in which racialization becomes less socially constricting. Especially in the age of the internet, language is as often encountered in graphic form as in speech. Features such as capitalization take on substantial and sometimes problematic social significance. Like particular words, typographic conventions can ‘dog-whistle’ hatred, becoming less effective when those targeted can engage in counter-speech. Counter-speech isn’t easy. Presidential tweets telling US-born congresswomen to “go back” to the countries of their (recent) ancestors did, however, get telling responses from American Indians and others. We need to acknowledge that there are no quick linguistic fixes to social ills and that those resisting reforms we might endorse need not be acting out of ill will but out of discomfort with the disruption of well-ingrained linguistic habits.
History and current affairs show that words matter - and change - because they are woven into our social and political lives. Words are weapons wielded by the powerful; they are also powerful tools for social resistance and for reimagining and reconfiguring social relations. Illustrated with topical examples, from racial slurs and sexual insults to preferred gender pronouns, from ethnic/racial group labels to presidential tweets, this book examines the social contexts which imbue words with potency. Exploring the role of language in three broad categories - establishing social identities, navigating social landscapes, and debating social and linguistic change - Sally McConnell-Ginet invites readers to examine critically their own ideas about language and its complicated connections to social conflict and transformation. Concrete and timely examples vividly illustrate the feedback loop between words and the world, shedding light on how and why words can matter.
Responding to recent calls made within the UK Parliament for a government-backed definition of Islamophobia, this article considers the unanticipated consequences of such proposals. I argue that, considered in the context of related efforts to regulate hate speech, the formulation and implementation of a government-sponsored definition will generate unforeseen harms for the Muslim community. To the extent that such a definition will fail to address the government's role in propagating Islamophobia through ill-considered legislation that conflates Islamist discourse with hate speech, the concept of a government-backed definition of Islamophobia appears hypocritical and untenable. Alongside opposing government attempts to define Islamophobia (and Islam), I argue that advocacy efforts should instead focus on disambiguating government counterterrorism initiatives from the government management of controversies within Islam. Instead of repeating the mistakes of the governmental adoption of the International Holocaust Remembrance Alliance (IHRA)'s definition of antisemitism by promoting a new definition of Islamophobia, we ought to learn from the errors that were made. We should resist the gratuitous securitization of Muslim communities, rather than use such definitions to normalize compliance with the surveillance state.
Scholars studying Singapore have given it many labels ranging from a dictatorship and one-party state to an illiberal democracy. In 2015, Mark Tushnet, in a much-discussed article published in the Cornell Law Review, used Singapore as the quintessential prototype of what he calls “authoritarian constitutionalism.” This chapter critically examines and unpacks Tushnet’s model of “authoritarian constitutionalism” and argues that this categorization is neither accurate nor useful. The author argues that Tushnet’s construction of this model is based on flawed premises and variables and that from the perspective of comparative constitutional law, this kind of model-making is unhelpful for scholars seeking to understand the true nature of how constitutions work in different societies.
This chapter uses the example of social media labeling as a test case for determining whether the First Amendment will be a barrier to implementing legislative solutions for securing election integrity. These solutions would either require or encourage social media tech firms to label political speech that has a foreign origin. To determine if this would be constitutional, this chapter addresses the following questions in sequence. First, are foreigners protected by the First Amendment? Second, if foreigners are not protected by the First Amendment, do Americans have a First Amendment right to receive or consume foreign speech? Third, are labeling and disclosure regimes consistent with the First Amendment, especially since they might compromise the core value of anonymity? Labeling and disclosure are common methods of regulation and are relatively uncontroversial in the commercial context. In contrast, labeling and disclosure regimes in the political context are far more controversial and demand a more searching level of constitutional scrutiny. Finally, the last question is whether international human rights law or European human rights law might impose constraints on social media regulation.
This chapter explores the historical roots and purposes of the Free Speech and Freedom of the Press Clauses of the First Amendment. It shows that the most of the early conflicts in this area concerned press freedoms. Disagreements over these issues came to a head over the Sedition Act of 1798, which was used by the Federalist Party to jail its Republican opponents. Ultimately, out of this conflict the Republicans articulated a new model of citizenship, rooted in principles of popular sovereignty, which remains central to our system of government today. Freedom of speech, on the other hand, played a very limited role in early history. Regardless of its humble origins, however, the Framing generation agreed that Free Speech, like Freedom of the Press, was an essential element of democratic government. Unfortunately, these rights have often been ignored by our government and the judiciary during times of stress such as the Red Scare and the McCarthy era. Today, however, thanks to the influence of pioneering arguments by Justices Oliver Wendell Holmes, Jr. and Louis Brandeis, there is broad agreement that these rights are essential to democracy and so must be protected.
The impetus for this article began with a question I was tasked to answer: “Is Freedom of Speech Harmful for College Students?” The query came from my alma mater California State University, Fullerton, for a 2015 symposium they were hosting on the title question, partly in response to a controversy the year before captured in this headline in the Orange County Register: “Cal State Fullerton Sorority Sanctioned for ‘Taco Tuesday’ Party” What was the sorority’s sin? “Cultural appropriation.” That is, appropriating someone else’s culture as your own. Seriously? How could free speech possibly be harmful to anyone, much less college students whose introduction to the invigorating world of ideas begins with the premise that any and all topics are open for debate and disputation? I shouldn’t have been, given that signs had appeared the previous few years – starting around 2013 – with the deplatforming of controversial speakers; the emphasis on protecting students’ feelings from ideas that might challenge their beliefs; the call for trigger warnings about sensitive subjects in books, films, and lectures; the opening of safe spaces for students to retreat to when encountering ideas they find offensive; and the dispersal of lists of microaggressions – words, phrases, statements, and questions that might offend people. This article is my hypothesis of what went wrong.
This article was originally published in the November/December 2018 issue of the Journal of Criminal Justice as a “Special Issue on the Study of Ethnicity and Race in Criminology and Criminal Justice,” addressing a target article by the psychologist James Flynn on “Academic Freedom and Race,” dealing with the always-controversial topic of racial group differences in IQ scores. The subject of this issue is not the IQ test and whether or not group differences are real (and if they are, what the cause of those differences might be). Instead we were tasked with thinking about to what extent scientists and scholars (and anyone else) should be free to inquire into the matter and, especially, if they should be free to report their findings and opinions, regardless of the political or cultural implications.
This essay was penned in response to the mass shooting in Christchurch, New Zealand, that took the lives of fifty people, and the subsequent response to not only ban assault rifles but to ban speech as well – hate speech that is. Banning hate speech will not work, especially in the age of Internet access to virtually all of human knowledge, and in which almost anyone anywhere can set up a web page and publish their ideas, no matter how hateful. You can combat evil, as when police forces catch criminals and military services counter terrorists and challenge insurgents and threats. But the idea – and it is an idea that can only be heard in an environment of free speech – that one can simply ban bad, dangerous, or hateful ideas has a historical track record of failure to do so, while snagging it its net good, useful, and productive ideas and their human generators. As I conclude, following the old saying that the answer to the problems of democracy is more democracy, the solution to hate speech is more speech.