Neil Weinstock Netanel
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195137620
- eISBN:
- 9780199871629
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195137620.001.0001
- Subject:
- Political Science, American Politics
Copyright is at once an engine of free expression and impediment to free expression. Copyright law underwrites much literature, journalism, music, art, and film. Yet copyright often stands in the way ...
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Copyright is at once an engine of free expression and impediment to free expression. Copyright law underwrites much literature, journalism, music, art, and film. Yet copyright often stands in the way of speech that would build upon existing expression to convey new messages and artistic perspectives.In a seminal 1970 article, Melville Nimmer, the leading copyright and First Amendment scholar of his day, aptly termed the copyright‐free speech conflict a “largely ignored paradox.” Yet today that conflict has come virulently to the fore, and copyright is increasingly chastised as a tool of private censorship.Why has that happened? What values and practices does the copyright‐free speech conflict put at stake? How should the conflict be resolved?These are the principal questions this book seeks to answer. This book explores the copyright‐free speech conflict as it cuts across traditional and digital media alike. In so doing, it juxtaposes the dramatic expansion of copyright holders' proprietary control against individuals' newly found ability to digitally cut, paste, edit, remix, and distribute popular sound recordings, movies, TV programs, graphics, and texts the world over. It tests whether, in light of these developments and others, copyright still serves as a vital engine of free expression and assesses how copyright does—and does not—burden speech. Taking First Amendment values as its lodestar, the book argues that copyright should be delimited by how it can best promote robust debate and expressive diversity, and it presents a blueprint for how that can be accomplished.Less
Copyright is at once an engine of free expression and impediment to free expression. Copyright law underwrites much literature, journalism, music, art, and film. Yet copyright often stands in the way of speech that would build upon existing expression to convey new messages and artistic perspectives.
In a seminal 1970 article, Melville Nimmer, the leading copyright and First Amendment scholar of his day, aptly termed the copyright‐free speech conflict a “largely ignored paradox.” Yet today that conflict has come virulently to the fore, and copyright is increasingly chastised as a tool of private censorship.
Why has that happened? What values and practices does the copyright‐free speech conflict put at stake? How should the conflict be resolved?
These are the principal questions this book seeks to answer. This book explores the copyright‐free speech conflict as it cuts across traditional and digital media alike. In so doing, it juxtaposes the dramatic expansion of copyright holders' proprietary control against individuals' newly found ability to digitally cut, paste, edit, remix, and distribute popular sound recordings, movies, TV programs, graphics, and texts the world over. It tests whether, in light of these developments and others, copyright still serves as a vital engine of free expression and assesses how copyright does—and does not—burden speech. Taking First Amendment values as its lodestar, the book argues that copyright should be delimited by how it can best promote robust debate and expressive diversity, and it presents a blueprint for how that can be accomplished.
Neil Weinstock Netanel
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195137620
- eISBN:
- 9780199871629
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195137620.003.0005
- Subject:
- Political Science, American Politics
The Supreme Court has labeled copyright “the engine of free expression.” Copyright serves in that role in three fundamental ways. First, copyright serves a “production function.” It provides an ...
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The Supreme Court has labeled copyright “the engine of free expression.” Copyright serves in that role in three fundamental ways. First, copyright serves a “production function.” It provides an economic incentive for the creation and dissemination of original expression. Second, copyright has an important “structural function.” It supports a sector of authors and publishers who look to the market, not government patronage, for financial sustenance and who thus gain considerable independence from government influence. Third, copyright has an “expressive function.” By encouraging authors, it reinforces the social and political importance of individuals' new, original contributions to public discourse.This chapter argues that copyright continues to underwrite free speech through each of its production, structural, and expressive functions. Yet the chapter also qualifies copyright's “engine of free expression” moniker. Copyright's support for free speech is far more complex and, in some ways, more limited than the Supreme Court's often‐cited paean suggests.Less
The Supreme Court has labeled copyright “the engine of free expression.” Copyright serves in that role in three fundamental ways. First, copyright serves a “production function.” It provides an economic incentive for the creation and dissemination of original expression. Second, copyright has an important “structural function.” It supports a sector of authors and publishers who look to the market, not government patronage, for financial sustenance and who thus gain considerable independence from government influence. Third, copyright has an “expressive function.” By encouraging authors, it reinforces the social and political importance of individuals' new, original contributions to public discourse.
This chapter argues that copyright continues to underwrite free speech through each of its production, structural, and expressive functions. Yet the chapter also qualifies copyright's “engine of free expression” moniker. Copyright's support for free speech is far more complex and, in some ways, more limited than the Supreme Court's often‐cited paean suggests.
Neil Weinstock Netanel
- Published in print:
- 2008
- Published Online:
- May 2008
- ISBN:
- 9780195137620
- eISBN:
- 9780199871629
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195137620.003.0001
- Subject:
- Political Science, American Politics
The United States Supreme Court has famously labeled copyright “the engine of free expression.” Copyright, indeed, both spurs creative production and underwrites a community of authors and publishers ...
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The United States Supreme Court has famously labeled copyright “the engine of free expression.” Copyright, indeed, both spurs creative production and underwrites a community of authors and publishers who are not beholden to government officials for financial support. But copyright has strayed from its traditional, speech‐enhancing core, so much so that copyright now imposes an unacceptable burden on the values that underlie First Amendment guarantees of free speech. Copyright has come increasingly to resemble and be thought of as a full‐fledged property right rather than a limited federal grant designed to further a particular public purpose. The copyright‐free speech conflict cuts across traditional and digital media alike. Yet digital technology adds a vast new dimension, pitting entertainment media bent on stamping out massive “digital piracy” against individuals who increasingly perceive copyright as an undue and unworthy impingement on their liberty and expressive autonomy.Less
The United States Supreme Court has famously labeled copyright “the engine of free expression.” Copyright, indeed, both spurs creative production and underwrites a community of authors and publishers who are not beholden to government officials for financial support. But copyright has strayed from its traditional, speech‐enhancing core, so much so that copyright now imposes an unacceptable burden on the values that underlie First Amendment guarantees of free speech. Copyright has come increasingly to resemble and be thought of as a full‐fledged property right rather than a limited federal grant designed to further a particular public purpose. The copyright‐free speech conflict cuts across traditional and digital media alike. Yet digital technology adds a vast new dimension, pitting entertainment media bent on stamping out massive “digital piracy” against individuals who increasingly perceive copyright as an undue and unworthy impingement on their liberty and expressive autonomy.
Andrew Altman
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780199236282
- eISBN:
- 9780191741357
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199236282.003.0002
- Subject:
- Philosophy, Feminist Philosophy, Philosophy of Language
This chapter critically examines the jurisprudence of free expression under human rights law and American constitutional doctrine, focusing on the issue of Holocaust denial. It is argued that legal ...
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This chapter critically examines the jurisprudence of free expression under human rights law and American constitutional doctrine, focusing on the issue of Holocaust denial. It is argued that legal prohibitions aimed at Holocaust denial are unjustifiable in any existing liberal state. The argument hinges on a revised form of a doctrine at the heart of a key American free speech case, Brandenburg v. Ohio. The revised Brandenburg doctrine holds that speech ought not to be prohibited, regardless of the viewpoint it advocates, unless the speech is a) intended and likely to bring about immediate lawless conduct, or b) reasonably expected to contribute substantially to widespread violence. This doctrine is defended, and it is shown to tell against prohibitions on Holocaust denial in existing liberal states.Less
This chapter critically examines the jurisprudence of free expression under human rights law and American constitutional doctrine, focusing on the issue of Holocaust denial. It is argued that legal prohibitions aimed at Holocaust denial are unjustifiable in any existing liberal state. The argument hinges on a revised form of a doctrine at the heart of a key American free speech case, Brandenburg v. Ohio. The revised Brandenburg doctrine holds that speech ought not to be prohibited, regardless of the viewpoint it advocates, unless the speech is a) intended and likely to bring about immediate lawless conduct, or b) reasonably expected to contribute substantially to widespread violence. This doctrine is defended, and it is shown to tell against prohibitions on Holocaust denial in existing liberal states.
Corey Brettschneider
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691147628
- eISBN:
- 9781400842377
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691147628.003.0005
- Subject:
- Philosophy, Political Philosophy
This chapter examines the notion that, while persuasion should not be backed by coercive force, it should be backed by the state's subsidy power. It defines subsidy power as the ability of the state ...
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This chapter examines the notion that, while persuasion should not be backed by coercive force, it should be backed by the state's subsidy power. It defines subsidy power as the ability of the state to spend money and, as crucially, to refuse to spend money on certain organizations. The state's subsidy power includes the ability to grant or withdraw tax-exempt, tax-deductible non-profit status. Its use is compatible with the right of free expression. Indeed, the chapter argues that the reasons justifying free expression require the state to withdraw subsidies from groups that oppose the core values of free and equal citizenship.Less
This chapter examines the notion that, while persuasion should not be backed by coercive force, it should be backed by the state's subsidy power. It defines subsidy power as the ability of the state to spend money and, as crucially, to refuse to spend money on certain organizations. The state's subsidy power includes the ability to grant or withdraw tax-exempt, tax-deductible non-profit status. Its use is compatible with the right of free expression. Indeed, the chapter argues that the reasons justifying free expression require the state to withdraw subsidies from groups that oppose the core values of free and equal citizenship.
Harry Brighouse
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199242689
- eISBN:
- 9780191598715
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199242682.003.0003
- Subject:
- Political Science, Political Theory
According to the interest theory of rights, the primary function of rights is the protection of fundamental interests. Since children undeniably have fundamental interests that merit protection, it ...
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According to the interest theory of rights, the primary function of rights is the protection of fundamental interests. Since children undeniably have fundamental interests that merit protection, it is perfectly sensible to attribute rights, especially welfare rights, to them. The interest theory need not be hostile to the accommodation of rights that protect agency because, at least in the case of adults, there is a strong connection between the protection of agency and the promotion of welfare. Children have welfare rights similar to those of adults. But children lack the agency rights adults have because children initially lack and only gradually develop the kinds of capacities for agency that are necessary for agency rights. Children's rights to culture, religion, and free expression are ill‐conceived.Less
According to the interest theory of rights, the primary function of rights is the protection of fundamental interests. Since children undeniably have fundamental interests that merit protection, it is perfectly sensible to attribute rights, especially welfare rights, to them. The interest theory need not be hostile to the accommodation of rights that protect agency because, at least in the case of adults, there is a strong connection between the protection of agency and the promotion of welfare. Children have welfare rights similar to those of adults. But children lack the agency rights adults have because children initially lack and only gradually develop the kinds of capacities for agency that are necessary for agency rights. Children's rights to culture, religion, and free expression are ill‐conceived.
James A. Davis
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691133317
- eISBN:
- 9781400845569
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691133317.003.0002
- Subject:
- Sociology, Social Research and Statistics
This chapter extends existing research on tolerance for nonconformity into the 2000s, following up on one of the very first articles based on the General Social Survey. Drawing on Stouffer's (1955) ...
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This chapter extends existing research on tolerance for nonconformity into the 2000s, following up on one of the very first articles based on the General Social Survey. Drawing on Stouffer's (1955) conceptualization, it defines tolerance as the willingness to accord First Amendment-guaranteed rights of free expression to groups espousing unpopular views (e.g., atheists or racists) or lifestyles (homosexuals). Anchored on Stouffer's McCarthy-era baseline reading, it documents a steady rise in tolerance into the 2000s, but suggests that this may be decelerating. The chapter concludes that generally liberal outlooks, not sentiments toward particular “target” groups, underlie rising tolerance. The growth in tolerance can be attributed to the replacement of older, less-educated cohorts by more recent ones. But because the two principal drivers of higher tolerance—education and generally liberal outlooks—have stopped rising, tolerance may soon reach a plateau.Less
This chapter extends existing research on tolerance for nonconformity into the 2000s, following up on one of the very first articles based on the General Social Survey. Drawing on Stouffer's (1955) conceptualization, it defines tolerance as the willingness to accord First Amendment-guaranteed rights of free expression to groups espousing unpopular views (e.g., atheists or racists) or lifestyles (homosexuals). Anchored on Stouffer's McCarthy-era baseline reading, it documents a steady rise in tolerance into the 2000s, but suggests that this may be decelerating. The chapter concludes that generally liberal outlooks, not sentiments toward particular “target” groups, underlie rising tolerance. The growth in tolerance can be attributed to the replacement of older, less-educated cohorts by more recent ones. But because the two principal drivers of higher tolerance—education and generally liberal outlooks—have stopped rising, tolerance may soon reach a plateau.
- Published in print:
- 2008
- Published Online:
- March 2013
- ISBN:
- 9780226240664
- eISBN:
- 9780226240749
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226240749.003.0011
- Subject:
- Law, Constitutional and Administrative Law
In the late 1920s and early to mid-1930s, republican democracy was crumbling and the practices of pluralist democracy were developing. While many of these changes in democratic government would not ...
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In the late 1920s and early to mid-1930s, republican democracy was crumbling and the practices of pluralist democracy were developing. While many of these changes in democratic government would not become apparent until later in the 1930s, many scholars had already begun talking about the workings of democracy by the middle of the decade. In this political and intellectual atmosphere, the justices' renewed interest in the free government–free expression maxim hardly seems coincidental. Rather, the free expression cases seemed to augur the coming of the 1937 turn and the Court's acceptance of pluralist democracy.Less
In the late 1920s and early to mid-1930s, republican democracy was crumbling and the practices of pluralist democracy were developing. While many of these changes in democratic government would not become apparent until later in the 1930s, many scholars had already begun talking about the workings of democracy by the middle of the decade. In this political and intellectual atmosphere, the justices' renewed interest in the free government–free expression maxim hardly seems coincidental. Rather, the free expression cases seemed to augur the coming of the 1937 turn and the Court's acceptance of pluralist democracy.
Stephen M. Feldman
- Published in print:
- 2008
- Published Online:
- March 2013
- ISBN:
- 9780226240664
- eISBN:
- 9780226240749
- Item type:
- book
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226240749.001.0001
- Subject:
- Law, Constitutional and Administrative Law
From the 1798 Sedition Act to the war on terror, numerous presidents, members of Congress, Supreme Court justices, and local officials have endorsed the silencing of free expression. If the ...
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From the 1798 Sedition Act to the war on terror, numerous presidents, members of Congress, Supreme Court justices, and local officials have endorsed the silencing of free expression. If the connection between democracy and the freedom of speech is such a vital one, why would so many governmental leaders seek to quiet their citizens? This book traces two rival traditions in American culture—suppression of speech and dissent as a form of speech—to provide an unparalleled overview of the law, history, and politics of individual rights in the United States. Charting the course of free expression alongside the nation's political evolution, from the birth of the Constitution to the quagmire of the Vietnam War, this book argues that our level of freedom is determined not only by the Supreme Court, but also by cultural, social, and economic forces. Along the way, it pinpoints the struggles of excluded groups—women, African Americans, and laborers—to participate in democratic government as pivotal to the development of free expression.Less
From the 1798 Sedition Act to the war on terror, numerous presidents, members of Congress, Supreme Court justices, and local officials have endorsed the silencing of free expression. If the connection between democracy and the freedom of speech is such a vital one, why would so many governmental leaders seek to quiet their citizens? This book traces two rival traditions in American culture—suppression of speech and dissent as a form of speech—to provide an unparalleled overview of the law, history, and politics of individual rights in the United States. Charting the course of free expression alongside the nation's political evolution, from the birth of the Constitution to the quagmire of the Vietnam War, this book argues that our level of freedom is determined not only by the Supreme Court, but also by cultural, social, and economic forces. Along the way, it pinpoints the struggles of excluded groups—women, African Americans, and laborers—to participate in democratic government as pivotal to the development of free expression.
Raymond J. Haberski
- Published in print:
- 2007
- Published Online:
- September 2011
- ISBN:
- 9780813124292
- eISBN:
- 9780813134918
- Item type:
- book
- Publisher:
- University Press of Kentucky
- DOI:
- 10.5810/kentucky/9780813124292.001.0001
- Subject:
- Film, Television and Radio, Film
In the postwar era, the lure of controversy sold movie tickets as much as the promise of entertainment did. This book investigates the movie culture that emerged as official censorship declined and ...
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In the postwar era, the lure of controversy sold movie tickets as much as the promise of entertainment did. This book investigates the movie culture that emerged as official censorship declined and details how the struggle to free the screen has influenced our contemporary understanding of art and taste. These conflicts over film content were fought largely in the theaters and courts of New York City in the decades following World War II. Many of the regulators and religious leaders who sought to ensure that no questionable content invaded the public consciousness were headquartered in New York, as were the critics, exhibitors, and activists who sought to expand the options available to moviegoers. Despite Hollywood's dominance of film production, New York proved to be not only the arena for struggles over film content but also the market where the financial fates of movies were sealed. Advocates for a wider range of cinematic expression eventually prevailed against the forces of censorship, but Freedom to Offend is no simple homily on the triumph of freedom from repression. In this analysis of controversies surrounding films from The Bicycle Thief to Deep Throat, the book offers a cautionary tale about the responsible use of the twin privileges of free choice and free expression. It calls attention to what was lost as well as what was gained when movie culture freed itself from the restrictions of the early postwar years. It exposes the unquestioning defense of the doctrine of free expression as a form of absolutism that mirrors the censorial impulse found among the postwar era's restrictive moral guardians. Beginning in New York and spreading across America throughout the twentieth century, the battles between these opposing worldviews set the stage for debates on the social effects of the work of artists and filmmakers.Less
In the postwar era, the lure of controversy sold movie tickets as much as the promise of entertainment did. This book investigates the movie culture that emerged as official censorship declined and details how the struggle to free the screen has influenced our contemporary understanding of art and taste. These conflicts over film content were fought largely in the theaters and courts of New York City in the decades following World War II. Many of the regulators and religious leaders who sought to ensure that no questionable content invaded the public consciousness were headquartered in New York, as were the critics, exhibitors, and activists who sought to expand the options available to moviegoers. Despite Hollywood's dominance of film production, New York proved to be not only the arena for struggles over film content but also the market where the financial fates of movies were sealed. Advocates for a wider range of cinematic expression eventually prevailed against the forces of censorship, but Freedom to Offend is no simple homily on the triumph of freedom from repression. In this analysis of controversies surrounding films from The Bicycle Thief to Deep Throat, the book offers a cautionary tale about the responsible use of the twin privileges of free choice and free expression. It calls attention to what was lost as well as what was gained when movie culture freed itself from the restrictions of the early postwar years. It exposes the unquestioning defense of the doctrine of free expression as a form of absolutism that mirrors the censorial impulse found among the postwar era's restrictive moral guardians. Beginning in New York and spreading across America throughout the twentieth century, the battles between these opposing worldviews set the stage for debates on the social effects of the work of artists and filmmakers.
Peter V. Marsden (ed.)
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691133317
- eISBN:
- 9781400845569
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691133317.001.0001
- Subject:
- Sociology, Social Research and Statistics
This book assembles a team of leading researchers to provide unparalleled insight into how American social attitudes and behaviors have changed since the 1970s. Drawing on the General Social Survey—a ...
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This book assembles a team of leading researchers to provide unparalleled insight into how American social attitudes and behaviors have changed since the 1970s. Drawing on the General Social Survey—a social science project that has tracked demographic and attitudinal trends in the United States since 1972—it offers a window into diverse facets of American life, from intergroup relations to political views and orientations, social affiliations, and perceived well-being. Among the book's many important findings are the greater willingness of ordinary Americans to accord rights of free expression to unpopular groups, to endorse formal racial equality, and to accept nontraditional roles for women in the workplace, politics, and the family. Some, but not all, signs indicate that political conservatism has grown, while a few suggest that Republicans and Democrats are more polarized. Some forms of social connectedness such as neighboring have declined, as has confidence in government, while participation in organized religion has softened. Despite rising standards of living, American happiness levels have changed little, though financial and employment insecurity has risen over three decades. This book provides an invaluable perspective on how Americans view their lives and their society, and on how these views have changed over the last two generations.Less
This book assembles a team of leading researchers to provide unparalleled insight into how American social attitudes and behaviors have changed since the 1970s. Drawing on the General Social Survey—a social science project that has tracked demographic and attitudinal trends in the United States since 1972—it offers a window into diverse facets of American life, from intergroup relations to political views and orientations, social affiliations, and perceived well-being. Among the book's many important findings are the greater willingness of ordinary Americans to accord rights of free expression to unpopular groups, to endorse formal racial equality, and to accept nontraditional roles for women in the workplace, politics, and the family. Some, but not all, signs indicate that political conservatism has grown, while a few suggest that Republicans and Democrats are more polarized. Some forms of social connectedness such as neighboring have declined, as has confidence in government, while participation in organized religion has softened. Despite rising standards of living, American happiness levels have changed little, though financial and employment insecurity has risen over three decades. This book provides an invaluable perspective on how Americans view their lives and their society, and on how these views have changed over the last two generations.
- Published in print:
- 2008
- Published Online:
- March 2013
- ISBN:
- 9780226240664
- eISBN:
- 9780226240749
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226240749.003.0007
- Subject:
- Law, Constitutional and Administrative Law
Despite the changes that swept across the nation after the Civil War, the law and traditions of free expression remained largely the same. Of course, Northerners disagreed about the implications of ...
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Despite the changes that swept across the nation after the Civil War, the law and traditions of free expression remained largely the same. Of course, Northerners disagreed about the implications of the Reconstruction for free expression just as they disagreed about many other issues. This chapter discusses immorality, expression, and libertarian theory; the legal doctrine's support for suppression; the link between expressive and economic liberties; and the Supreme Court's doctrinal stance on free expression.Less
Despite the changes that swept across the nation after the Civil War, the law and traditions of free expression remained largely the same. Of course, Northerners disagreed about the implications of the Reconstruction for free expression just as they disagreed about many other issues. This chapter discusses immorality, expression, and libertarian theory; the legal doctrine's support for suppression; the link between expressive and economic liberties; and the Supreme Court's doctrinal stance on free expression.
ALAN BRUDNER
- Published in print:
- 2007
- Published Online:
- January 2010
- ISBN:
- 9780199225798
- eISBN:
- 9780191706516
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199225798.003.0006
- Subject:
- Law, Constitutional and Administrative Law
This chapter derives the constitutional doctrines flowing from the state's duty under the egalitarian paradigm to cultivate the conditions for everyone's living a self-authored life. In particular, ...
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This chapter derives the constitutional doctrines flowing from the state's duty under the egalitarian paradigm to cultivate the conditions for everyone's living a self-authored life. In particular, it derives a right against strict criminal responsibility for harmful consequences, a right to express in right-respecting action one's conscientious beliefs, a right to state accommodation of conscientious belief where this is compatible with egalitarian public goals, and a qualified right to physician-assisted suicide. However, it criticizes those products of the egalitarian constitution flowing from the premise that the egalitarian principle is fundamental rather than part of a larger scheme. Specifically, it criticizes the egalitarian tendency toward strong legal paternalism, its repudiation of objective morality, and its inability to conceive of reasonable limits on the obscene and hateful public expression of conscientiously held beliefs.Less
This chapter derives the constitutional doctrines flowing from the state's duty under the egalitarian paradigm to cultivate the conditions for everyone's living a self-authored life. In particular, it derives a right against strict criminal responsibility for harmful consequences, a right to express in right-respecting action one's conscientious beliefs, a right to state accommodation of conscientious belief where this is compatible with egalitarian public goals, and a qualified right to physician-assisted suicide. However, it criticizes those products of the egalitarian constitution flowing from the premise that the egalitarian principle is fundamental rather than part of a larger scheme. Specifically, it criticizes the egalitarian tendency toward strong legal paternalism, its repudiation of objective morality, and its inability to conceive of reasonable limits on the obscene and hateful public expression of conscientiously held beliefs.
Corey Brettschneider
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691147628
- eISBN:
- 9781400842377
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691147628.003.0007
- Subject:
- Philosophy, Political Philosophy
This concluding chapter examines some possible further implications of democratic persuasion that might be a source for further study. The first implication is that the book's view might serve as a ...
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This concluding chapter examines some possible further implications of democratic persuasion that might be a source for further study. The first implication is that the book's view might serve as a model for other states that seek an alternative to the two dominant approaches to free speech. The third approach, democratic persuasion, allows free speech advocates to retain the protections against coercion found in rights of free expression. However, democratic persuasion also gives voice to the fundamental value of free and equal citizenship that underlies free speech. The second implication of the book's view is that it can also serve as a model for understanding how to promote ideals of equality in international law without violating the rights of individuals or the rights of states. Indeed, democratic persuasion already has a prominent role in international law.Less
This concluding chapter examines some possible further implications of democratic persuasion that might be a source for further study. The first implication is that the book's view might serve as a model for other states that seek an alternative to the two dominant approaches to free speech. The third approach, democratic persuasion, allows free speech advocates to retain the protections against coercion found in rights of free expression. However, democratic persuasion also gives voice to the fundamental value of free and equal citizenship that underlies free speech. The second implication of the book's view is that it can also serve as a model for understanding how to promote ideals of equality in international law without violating the rights of individuals or the rights of states. Indeed, democratic persuasion already has a prominent role in international law.
Geoffrey Marshall
- Published in print:
- 1980
- Published Online:
- March 2012
- ISBN:
- 9780198761211
- eISBN:
- 9780191695148
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198761211.003.0009
- Subject:
- Law, Constitutional and Administrative Law
This chapter discusses freedom of speech and assembly. It first considers John Stuart Mill's defence of free expression in the essay On Liberty and the implications of his principles. It then ...
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This chapter discusses freedom of speech and assembly. It first considers John Stuart Mill's defence of free expression in the essay On Liberty and the implications of his principles. It then discusses principles about unlawful assembly, the implementation of the Public Order Act of 1936, and attempts to address the problems of defining the limits of free expression.Less
This chapter discusses freedom of speech and assembly. It first considers John Stuart Mill's defence of free expression in the essay On Liberty and the implications of his principles. It then discusses principles about unlawful assembly, the implementation of the Public Order Act of 1936, and attempts to address the problems of defining the limits of free expression.
Martin H. Redish
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780804772150
- eISBN:
- 9780804786348
- Item type:
- book
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804772150.001.0001
- Subject:
- Law, Constitutional and Administrative Law
The book presents a unique and controversial rethinking of the intersection between modern American democratic theory and free expression. Most free speech scholars view freedom of expression as a ...
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The book presents a unique and controversial rethinking of the intersection between modern American democratic theory and free expression. Most free speech scholars view freedom of expression as a vehicle for fostering democracy. However, most do so by relying upon communitarian, cooperative or collectivist democratic theories. This book reshapes free speech as an outgrowth of adversary democracy, arguing that individuals should have the opportunity to affect the outcomes of collective decision-making according to their own personal values and interests. Adversary democracy recognizes the inevitability of conflict within a democratic society, as well as the need for regulation of the conflict to prevent the onset of tyranny. In doing so, it embraces pluralism, diversity and individual growth and developmentLess
The book presents a unique and controversial rethinking of the intersection between modern American democratic theory and free expression. Most free speech scholars view freedom of expression as a vehicle for fostering democracy. However, most do so by relying upon communitarian, cooperative or collectivist democratic theories. This book reshapes free speech as an outgrowth of adversary democracy, arguing that individuals should have the opportunity to affect the outcomes of collective decision-making according to their own personal values and interests. Adversary democracy recognizes the inevitability of conflict within a democratic society, as well as the need for regulation of the conflict to prevent the onset of tyranny. In doing so, it embraces pluralism, diversity and individual growth and development
Kimberley Brownlee
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199592944
- eISBN:
- 9780191746109
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592944.003.0005
- Subject:
- Law, Philosophy of Law, Human Rights and Immigration
Drawing on the previous discussion, this chapter explores the moral rights generated by conscience and conscientious conviction respectively. The chapter shows that the value of conscience generates ...
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Drawing on the previous discussion, this chapter explores the moral rights generated by conscience and conscientious conviction respectively. The chapter shows that the value of conscience generates a duty-based right that protects our ability to honour our special moral responsibilities. The chapter then looks at what is required to respect us as autonomous and expressive beings who can forge deep moral convictions. The chapter shows that the autonomy and dignity-related value of respecting conviction gives rise to two moral rights. These are a right to inner control and free thought and a limited moral right of conscientious action. It is argued that neither the right of conscience nor the right of conscientious action can be translated into a legal right, but nevertheless they should inform the analysis of how the law ought to respond to the disobedience they protect.Less
Drawing on the previous discussion, this chapter explores the moral rights generated by conscience and conscientious conviction respectively. The chapter shows that the value of conscience generates a duty-based right that protects our ability to honour our special moral responsibilities. The chapter then looks at what is required to respect us as autonomous and expressive beings who can forge deep moral convictions. The chapter shows that the autonomy and dignity-related value of respecting conviction gives rise to two moral rights. These are a right to inner control and free thought and a limited moral right of conscientious action. It is argued that neither the right of conscience nor the right of conscientious action can be translated into a legal right, but nevertheless they should inform the analysis of how the law ought to respond to the disobedience they protect.
Christina Bohannan and Herbert Hovenkamp
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199738830
- eISBN:
- 9780199932702
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199738830.003.0008
- Subject:
- Law, Competition Law, Intellectual Property, IT, and Media Law
This chapter examines the relationship between copyright law, the harm caused by others' uses of copyright material, and free expression. The United States has a very strong tradition of First ...
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This chapter examines the relationship between copyright law, the harm caused by others' uses of copyright material, and free expression. The United States has a very strong tradition of First Amendment protection for speech, including speech that is threatening to others, immoral by the standards of many, or socially disruptive in other ways. The one glaring exception is in copyright law, which often permits infringement actions against speech that is both expressive on the part of the speaker and harmless, or virtually so, to the copyright holder or anyone else. A harm requirement is proposed for copyright infringement that protects both creative innovation and free speech.Less
This chapter examines the relationship between copyright law, the harm caused by others' uses of copyright material, and free expression. The United States has a very strong tradition of First Amendment protection for speech, including speech that is threatening to others, immoral by the standards of many, or socially disruptive in other ways. The one glaring exception is in copyright law, which often permits infringement actions against speech that is both expressive on the part of the speaker and harmless, or virtually so, to the copyright holder or anyone else. A harm requirement is proposed for copyright infringement that protects both creative innovation and free speech.
- Published in print:
- 2005
- Published Online:
- March 2013
- ISBN:
- 9780226662749
- eISBN:
- 9780226662756
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226662756.003.0005
- Subject:
- History, History of Ideas
This chapter focuses on intellectuals' accounts of free expression and on important Supreme Court decisions. The U.S. Supreme Court is one of the world's most prolific and influential producers of ...
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This chapter focuses on intellectuals' accounts of free expression and on important Supreme Court decisions. The U.S. Supreme Court is one of the world's most prolific and influential producers of communication theory. Especially but not only in its interpretations of the First Amendment, the Court has ruminated on the gamut of communicative problems facing a democratic polity, in the process offering smart and sometimes curious commentary usable for more general purposes. Its discourse on free expression is an open book about mass communication in the modern world. Admittedly, the Court produces theory of a peculiar sort. Extended theoretical treatments about free expression usually come from scholars or judges writing in the luxury of private thought, rather than in decisions. The late twentieth-century interpretation of the First Amendment contains a touch of what the Russian literary theorist Mikhail Bakhtin and his followers call “the carnivalesque,” the raucous celebration of inversion, mockery, and transgression.Less
This chapter focuses on intellectuals' accounts of free expression and on important Supreme Court decisions. The U.S. Supreme Court is one of the world's most prolific and influential producers of communication theory. Especially but not only in its interpretations of the First Amendment, the Court has ruminated on the gamut of communicative problems facing a democratic polity, in the process offering smart and sometimes curious commentary usable for more general purposes. Its discourse on free expression is an open book about mass communication in the modern world. Admittedly, the Court produces theory of a peculiar sort. Extended theoretical treatments about free expression usually come from scholars or judges writing in the luxury of private thought, rather than in decisions. The late twentieth-century interpretation of the First Amendment contains a touch of what the Russian literary theorist Mikhail Bakhtin and his followers call “the carnivalesque,” the raucous celebration of inversion, mockery, and transgression.
- Published in print:
- 2008
- Published Online:
- March 2013
- ISBN:
- 9780226240664
- eISBN:
- 9780226240749
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226240749.003.0013
- Subject:
- Law, Constitutional and Administrative Law
The legal doctrines and theories of free expression under pluralist democracy remain in flux. In the realm of free-expression doctrine, at least three major questions persist. First, should the Court ...
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The legal doctrines and theories of free expression under pluralist democracy remain in flux. In the realm of free-expression doctrine, at least three major questions persist. First, should the Court eliminate the two-level approach, which presumes that expression is constitutionally protected unless it falls into a low-value category, like obscenity or fighting words? Second, assuming that the Court retains the two-level doctrine, should the justices recognize additional low-value categories, thus placing more expression outside of first-amendment protections? Third, should the Court elaborate the two-level doctrine so that it becomes a trilevel or multilevel approach?Less
The legal doctrines and theories of free expression under pluralist democracy remain in flux. In the realm of free-expression doctrine, at least three major questions persist. First, should the Court eliminate the two-level approach, which presumes that expression is constitutionally protected unless it falls into a low-value category, like obscenity or fighting words? Second, assuming that the Court retains the two-level doctrine, should the justices recognize additional low-value categories, thus placing more expression outside of first-amendment protections? Third, should the Court elaborate the two-level doctrine so that it becomes a trilevel or multilevel approach?
