This chapter explores the concept of ‘art’ from the perspective of law, art history and aesthetics. Drawing on examples from the visual arts, it discusses the concept of ‘art’ in light of Plato’s philosophical ideas, Weitz’s argument about art as an ‘open concept’, Danto’s philosophical investigations and the ‘institutional theory’ of the art. It further draws upon various areas of international law, including cultural heritage law and intellectual property law, in order to demonstrate that a precise definition of ‘art’ is not offered at present in any international instrument. The chapter further examines the legal challenges arising from the ‘non-definition’ of the concept of ‘art’, questioning the validity of the argument of artistic freedom as an exception to rules of general application. Last, the chapter details the need for legal protection against abuses and potential dismissal of artworks as ‘non-art’, in instances where the qualification ‘art’ (and consequently the question of artistic merit) plays the role of a ‘defence’ against attempts to interfere with freedom of speech.

The topic of this study might appear puzzling to creative artists and art worlds,1 namely painters, musicians, dancers, film-makers, playwriters, composers, all those who make artworks or work with artists, museum staff, art faculty, gallerists, collectors, art buyers and art lovers. What does international law have to do with art? And why is there a need to write a legal monograph on a topic that is self-evident? From the perspective of the aforementioned stakeholders, arts are and should remain free. Freedom is a vital condition for the realization of the creative process.

This chapter considers the wider implications of The Satanic Verses affair and the fatwa. It engages with Rushdie’s considerations of Islam, secularism, and the complexities of geopolitical leadership of the Muslim world. The chapter also explores the wider questions and implications of freedom of expression that have been raised in Europe especially at the time and structured Britain’s relationship with Iran between 1989 and 1998. The chapter examines Rushdie’s own responses to the fatwa, collected in the final sections in his essay collection Imaginary Homelands as well as considering responses from Muslim literary critics and writers, some of whom supported Rushdie, others who spoke out against him, to illuminate the wider public debates around freedom of expression, secularism, and faith, which have proved central to a consideration of Rushdie’s work.

Today three forces threaten to limit speech. The first pits guns against words, creating a showdown between the Second Amendment and the First. The second sees powerful speakers invoking their right to speak in order to silence other people’s speech. Third, and perhaps the most subtle, the monitoring of our digital speech by government and business chills our ability to say what we want online. Free speech will survive provided we remain vigilant in defending the speech rights of the minority against what has been called the tyranny of the majority.

Natural law theory in the Aristotelian-Thomistic (A-T) tradition is grounded in a metaphysics of essentialism and teleology, and in turn grounds a theory of natural rights. This chapter offers a brief exposition of the metaphysical ideas in question, explains how the A-T tradition takes a natural law moral system to follow from them, and also explains how in turn the existence of certain basic natural rights follows from natural law. It then explains how the teleological foundations of natural law entail not only that natural rights exist, but also that they are limited or qualified in certain crucial ways. The right to free speech is used as a case study to illustrate these points. Finally, the chapter explains the sense in which the natural rights doctrine generated by A-T natural law theory amounts to a theory of human rights, specifically.

Chapter 6 discusses Title IX under Secretary DeVos. It begins by describing how the Department of Education quickly broke from its predecessor before recounting the two-year process of promulgating new regulations. It then turns to the first of a two-chapter deeper dive into changes made to Title IX. Here, the chapter focuses on how the new regulations narrow what counts as actionable sexual harassment and weaken oversight of schools by the Department of Education. The chapter contends that most of these changes are deeply problematic and should be reversed.

This chapter considers the relationship between antitrust law and the First Amendment as those topics relate to workers’ collective action. It asks why the US Supreme Court has remained unwilling to accept First Amendment defenses in cases involving potential antitrust liability for strikes and boycotts, even as it has expanded the scope of First Amendment protections available in analogous situations. The chapter begins by reviewing foundational cases regarding antitrust liability for strikes and boycotts. It then discusses subsequent developments in First Amendment doctrine related to commercial speech, free association, and civil-rights boycotts. Finally, the chapter turns to the 1990 US Supreme Court case, Federal Trade Commission v. Superior Court Trial Lawyers Association, showing how First Amendment principles that are uncontroversial in other contexts could have driven a different outcome. The chapter closes with observations about the modern Supreme Court’s views of the purposes of the First Amendment, and difficulties workers and unions are likely to encounter thereunder.

Freedom of expression and association are at once themselves fundamental human rights and also necessary for the promotion and protection of other rights. In many contexts, anonymity is essential for the realization of these rights, affording citizens the ability to speak without fear of retribution. Yet while there is a growing acknowledgement of the importance that anonymity plays in enabling free expression and association in the online world, debates about the right to remain anonymous in the physical world are lagging behind.

Radical political dissent on the right and left presented the Court with numerous problems. Overall, the Court developed a law of free expression that offered substantial protection to political dissidents. It invalidated a Minnesota statute authorizing courts to issue injunctions agains publication of liberlous material and a California statute banning display of the Communist red flag. It invalidated convictions of Communist organizers in Oregon and Georgia. And, protecting dissident news writers against political retaliation, it upheld the application of the National Labor Relations Act to the Associated Press and other news organizations.

This chapter argues that a pro-democracy First Amendment should also be a pro-union First Amendment. It is an article of faith that a significant purpose of the First Amendment is to enable and improve democracy, by helping Americans access the information they need for democratic deliberation and participation. Further, a considerable body of research shows that labor unions make American democracy stronger and more representative. But despite this, the Supreme Court has treated unions’ political advocacy in cases involving union agency fees with suspicion and disdain. After describing this unfortunate situation – one that is likely to get worse under the current Supreme Court – the chapter closes on a note of optimism, looking ahead to a time when scholars and advocates can realistically begin the work of rebuilding a First Amendment that recognizes labor unions as democracy-enhancing institutions.

In this chapter, we introduce the notion of “transgression space” to describe the structure of governance of websites on which the community is characterized by the strong presence of trolls. Trolls are defined as users who constantly challenge the rules of websites they browse through, namely by posting transgressive content. The transgression space corresponds in this perspective to the arena of interactions in such communities. We demonstrate through a case study on the ``BlaBla 18-25’’ forum of jeuxvideo.com that the governance of these transgression spaces can be analysed through the Governing Knowledge Commons framework, allowing us to generalize this notion for other case studies.

Chapter 9 focuses on various theorists who make up the Anti-Free Speech Movement, starting with philosopher Herbert Marcuse. They suggest that the First Amendment has been interpreted too broadly to allow protection for speech they believe is intolerable, and that this should be reversed. The chapter examines those who have espoused critical race theory to develop arguments for suppressing hate speech, and feminists who advocate suppressing sexually oriented speech. The connection between these various theorists is that they argue that the First Amendment has gone too far, yet they vigorously deny that they support censorship. In doing so, they adopt the rhetoric and tactics designed by Anthony Comstock, Fredric Wertham, and Newton Minow before them. The chapter concludes that the purpose of the First Amendment is to block government from having the type of power these theorists advocate, and suggests that one way to preserve free speech is to use this list of characteristics as a means of identifying censors.

Chapter 3 examines Anthony Comstock’s legacy and the birth of the “censor’s dilemma.” Although no censor before or since has wielded such power or had the same level of influence as Comstock, his achievements were washed away by cultural and legal evolution. Even in his time, his crusades did as much to promote the popularity of “forbidden” works, and since his time, the profession of censor has been forever tarnished. The legal doctrine on which Comstock depended was reversed by the development of First Amendment law through the twentieth century, particularly the law of obscenity. To the extent that Comstock is remembered today, he is the subject of derision and scorn.

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.