Friday, May 23, 2008


Mark Graber

Theorists and pragmatists in the American legal academy fight over the content of constitutional law as fiercely as do liberals and conservatives or Republicans and Democrats. Grand theorists insist that constitutional debates are best settled by reference to such broader principles as originalism or “all men are created equal.” Pragmatists respond that such matters are better settled by empirical investigations aimed at establishing the costs and benefits of particular policies or institutional arrangements. Free Speech & Human Dignity boldly champions the theorist perspective. Steven J. Heyman’s exceptionally accessible perspective on the First Amendment contends that fundamental constitutional problems are best resolved through a return to natural rights thinking. “Free speech,” he maintains, should be justified “primarily on intrinsic grounds, as a right of human nature and republican citizenship.” The analysis that follows is an important addition to the literature on the First Amendment, even if unlikely to convert more empirically oriented constitutional thinkers.

Free Speech contends that pragmatism has corrupted First Amendment analysis. The framers, Heyman contends, understood freedom of speech to be one of the natural rights persons enjoyed by virtue of being human. Rooted in human nature, natural law both provided justifications for broad expression rights and the limits to that liberty. “On the classical libertarian view,” Heyman writes, “rights had inherent limits, which derived from the nature of a particular right, its place within the larger framework of rights, and the duty to respect the rights of others.” Progressives at the turn of the twentieth century replaced this original natural rights perspective with one rooted in various social interests, most notably “an empirical judgment as to the best means of promoting the social good.” This transformation has plagued subsequent constitutional analysis. Pragmatists must consistently compare apples to oranges. Free speech is balanced against other interests without any metric to determine appropriate weights. As Free Speech notes, the social good provides “an indeterminate standard for deciding between competing interests.”

Returning to natural rights, Heyman contends, will enable justices and commentators to avoid these problems. The natural right to free speech is self-limiting. Persons have a right to free speech because free speech is a central aspect of “human dignity and autonomy.” Human dignity and autonomy, in turn, entail respect for other rights, “including personal security, privacy, reputation, citizenship, and equality.” When speakers threaten the natural rights of other persons, by threatening them with physical harm, wrongly destroying their reputation, or denying their status as equal persons, they are no longer exercising a free speech right. “If liberty is to exist,” Heyman insists, “it must be bounded by a duty to refrain from interfering with the equal liberty of others.” These inherent limits on speech justify legislation that regulates expression, as long as regulations are artfully drawn and appropriately balance the various rights at stake. Significantly, Free Speech insists, theorists balance better than pragmatists. Pragmatists weigh all the costs and benefits of expression, considering speech “as valuable “ only “insofar as it promotes social welfare.” Theorists conduct a more nuanced balancing test, permitting “speech to be restricted only when necessary to protect another right that, under the circumstances, is more valuable as an aspect of human freedom.”

Heyman’s analysis of the natural right to free speech is intelligent, clear, and appropriately modest. Free Speech offers a theory deeply rooted in eighteenth century American history that provides a framework for thinking about free speech problems at the turn of the twenty-first century. The analysis explains why speech which advocates crime ought to be protected, while speech that targets individuals from criminal conduct is not. Heyman would regulate more pornography than the American Civil Liberties Union, but not as much as prominent radical feminists. While the “choice to make or view sexual material falls within the notion of individual autonomy.” Free Speech contends that “violent pornography infringes the rights of those it portrays to recognition as human beings.” Heyman cheerfully acknowledges that this analysis is tentative. Natural rights best structures thinking about free speech, and is not a formula for generating uncontested right answers to all questions about the First Amendment. His “overriding goal is to show that the rights-based theory provides a useful framework for debating difficult issues.”

Whether the theorist has triumphed over the pragmatist is not entirely clear. At times, the natural rights analysis seems identical to standard interest analysis. Heyman admits as much when he asserts that Justice Stephen Breyer’s “opinion may be regarded as a model of how the rights-based approach would apply to a case like Bartnicki [v. Vopper (2001)],” even though “Breyer uses the language of interests rather than of rights.” Nothing apparently is lost in the translation when the costs and benefit associated with the public transmission of private conversations are converted from interests to rights. Heyman’s recognition of group-based rights has the potential to further muddy the distinction between pragmatist and natural rights conceptions of expression rights. Free Speech declares, “the liberal tradition views people as having rights not only as individuals but also as a community.” Among these rights, the discussion of pornography asserts, is the right to a certain kind of “public environment.” Presumably clean streets are one aspect of this natural, communal right. If so, majorities protect the natural rights of members when they restrict speech that may present a clear and present danger of litter. The right to free speech may be more important than the communal right to clean streets. Nevertheless, the rights balancing analysis in these circumstances seems identical to the interest balancing analysis. At least, Heyman in future works might want to focus more on whether rights language is likely to make a difference in practice or in theory.

Still, the pragmatist has related problems that are not easy to overcome. Free speech rights must have some limits, otherwise all human conduct might be constitutionally protected as a form of self-expression. Heyman and other theorists correctly recognize that these limits are likely to be derived from the same principles or theories that best justify protections for free speech. A liberal theory will have liberal limits to free speech, just as some other kind of theory will have limits intrinsic to that theory. Interest analysis tends to smuggle in a good deal of theory. Balancing free speech against some other interest requires some kind of normative theory that generates appropriate weights. Heyman has presented a scholarly account and justification of the values he believes ought to animate First Amendment jurisprudence. Critics need to provide an alternative theory rather than merely carp on the fundamental limits of all grand theories of constitutional law.


"As Free Speech notes, the social good provides 'an indeterminate standard for deciding between competing interests.' ”
Unless you choose to use a measure based on simple economics. That's the resolution based on "instrumental" reason, and neoliberalism.

"Free speech rights must have some limits, otherwise all human conduct might be constitutionally protected as a form of self-expression."

If you consider freedom of speech as a subsidiary aspect to freedom of inquiry - freedom to listen- then this problem is largely resolvable.

The assumption that democracy has a purpose is problematic in itself given that democracy is best defined as a relation among a multiplicity of purposes.
Both pragmatism [to what end?] and natural law are built from teleological, implicitly religious assumption. The logic says that all fictions are fiction but that these fictions -economic, political, are true.
The only natural law that has any empirical support is Darwinian. Civil society is unnatural and needs to be understood as such.

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