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I. RIGHTS TO FREE SPEECH

The normative backdrop to the following discussion of free speech is the same as the one that served us in other parts of the book: a juxtaposition between utilitarian consequentialism on the one hand and Kantian deontology on the other. But whereas various aspects of law and social policy are amenable to interpretation in terms of either approach, the concept of a right, at least in accordance with a prominent conception, arises out of the tension between the two. On this view, rights are designed to insulate certain aspects of persons and their lives from the demands of society’s aggregate welfare, thus securing individuals’ autonomy and respect for their dignity. In discussing freedom of speech, I focus exclusively on this “strong” meaning of right.2 To carry the weight normally assigned to it, freedom of speech must be understood as what I call an autonomy right—that is, a right that protects some fundamental aspects of personhood vital to one’s dignity and exercise of autonomy.[1]

Even within these somewhat artificial strictures freedom of speech remains a complex right. First, freedom of speech is supported by two sets of interests: those of the speaker, the active aspect of free speech, and those of the listener, the passive aspect. The active right to speak is linked to the ideas of self-expression and self-realization, whereas the passive right to listen emphasizes the importance of access to information, ideas, and points of view for one’s ability to form independent, informed, and intelligent judgments. A second distinction that applies to freedom of speech is between two kinds of rights. A right may be recognized in P out of concern for P himself. In such a case, P has what I shall call an original right. A right may be also granted to P out of concern for someone else. In this case, P will be said to have a derivative right. A guardian, for example, may be given such rights as are necessary for the effective execution of her role. The reason for these rights would lie in the concern for the ward’s interests, and only derivatively in the concern for protecting the guardian’s interests.3 By combining the two distinctions, we get the following typology of speech rights. In addition to the speaker’s original right to self-expression, concern for the listener’s autonomy-based right to listen implies a passive derivative right in the speaker not to be interrupted in her communications. First Amendment protection may also extend to someone other than the speaker if granting such protection to the other person promotes or protects the original speaker’s self-expression. A publisher of a book, for example, may deserve such protection based on her contribution to the author’s self-expression. In such a case the publisher would have an active derivative speech right.

Though all speech rights secure to their bearers a measure of protection, the scope and the weight of a speech right crucially depend on whether it is considered original or derivative, and in the latter case, on the primary interest from which the right is derived. An original speech right recognizes speech as an integral aspect of the speaker’s autonomy; to respect the right is to respect that aspect of the right-bearer’s dignity that is bound up with her self-expression. Infringing an original autonomy right is prima facie wrong even when done in order to enhance the enjoyment of a similar right in others, since doing so would amount to an impermissible act of sacrificing one person for another. In contrast, a derivative right is instrumental: its purpose is to safeguard or enhance the enjoyment of certain rights by others. And as all instruments, a derivative right is measured by its effectiveness. It may be limited or discarded in favor of better means to attain the same goals.

  • [1] I don’t accordingly pursue here the question whether corporate and other collective communications should get some protection on purely utilitarian grounds. Within the presentscheme, the rights secured by such protections would be “weak,” because they would be vulnerable to conflicting utilitarian policy considerations and liable to being defeated by them.
 
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