Equality in Freedom

Much of the debate balancing freedom of expression and equality focuses on instances in which free expression endangers other aspects, not necessarily speech related, of equality in society. For example, the legality of speech that promotes hate and sexism, distorts the balance of elections (Dawood, 2013; Fiss, 1996), or relegates women in particular to mere objects of sexual desire (Fiss, 1996; Strossen, 1995). These examples are rooted, however, in a narrow conception of what freedom of expression means. Those calling for setting limits on these forms of speech do not seek equality in the expression itself but argue for the virtue of obstructing free speech in the name of attaining equality in society. Hence, the notion of equality in freedom of expression is not intuitive, because it requires that we define what we mean by freedom in a broad sense. In the narrow sense, freedom is more often than not defined as liberty, meaning a negative right, a right whose essence is that its obstruction is proscribed. However, it can also be defined as a power, the freedom to make choices, to affect others, or as the freedom to gain or receive something. For formal equality in freedom it may suffice to have equality in the negative sense, hence freedom for equal protection from coercion or, as Locke (1690) put it in his Second Treatise ofGovernment, “law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”4 However, for substantial equality in freedom of expression, access to the tools of expression and the capability to use them are needed as well. As a result, limiting the conversation to negative freedoms and non-speech-related inequalities does not fully capture the nature of free expression in contemporary times.

Dworkin5 (2002) finds that the ideal equality is equality in resources. Grounded in distributional justice concerns, he concludes that “if we accept equality of resources as the best conception of distributional equality, liberty becomes an aspect of equality, rather than...potentially in conflict with it” (p. 121). His justification for this position lies in the understanding that it is hard to defend a position that does not accept that certain limitations may be set on fundamental freedoms, such as freedom of speech, for the sake of achieving gains in equality. “[L]iberty seems valuable to us,” claims Dworkin,

only because of the consequences we think it does have for people: we think lives led under circumstances of liberty are better lives just for that reason. Can it really be more important that the liberty of some people be protected, to improve the lives those people lead, than that other people, who already are worse off, have the various resources and other opportunities that they need to lead decent lives? How could we defend that view? (p. 121).

Hence, the relationship between democracy and justice should be in the fair and equal distribution of the means to participate in democratic life. The provision of a “democratic minimum” to all, “a normative status sufficient for citizens to exercise their normative and creative powers to reshape democracy according to the demands of justice” (Bohman, 2007, p. 271), may lead to a situation in which, whenever democracy grows, justice grows as well (Bohman, 2007). Yet such freedoms achieved would not be able to “survive without the continuous support and democratic engagement of concerned citizens” (Toens, 2007, p. 163), and a lack of access to technologies that provide the opportunity to be democratically engaged leads to “a growing sense...that ICTs have helped to exacerbate existing differences in information access and use, and may even have fostered new types of barriers” (Liveruow & Farb, 2003, p. 499).

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