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Advanced Introduction to Freedom of Expression

Mark Tushnet

The Advanced Introduction to Freedom of Expression provides an overview of major issues in the doctrinal structure of a law of freedom of expression, relevant to discussions of freedom of expression under many national constitutions. Assuming familiarity with basic theories of free expression, this book addresses the implications of reasonable disagreement between legislatures and courts about whether a specific measure violates freedom of expression, the implications of the fundamental proposition that speech can cause harm, the distinction between the coverage of freedom of expression and the protections it affords, and the appropriate doctrinal forms when speech is said to conflict with other rights such as equality, or merely other social interests. The book will be of interest to anyone, including students, teachers, researchers and policymakers wanting to learn more about the freedom of expression and the law.
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Basic concepts

Mark Tushnet


Assume that the following regulations of expression have been adopted by reasonably well-functioning and democratically representative legislatures. (Later we will consider what we should think about in determining whether a legislature is reasonably well-functioning and democratically representative.)

Banning the Indirect Encouragement of Terrorism1

A person commits an offense if he publishes a statement that is likely to be understood by some or all of the members of the public to whom it is published as an indirect encouragement to them to the commission, preparation, or instigation of acts of terrorism, and at the time he publishes it he intends members of the public to be indirectly encouraged or otherwise induced by the statement to commit, prepare, or instigate acts of terrorism, or is reckless as to whether members of the public will be indirectly encouraged [etc.].

Statements that are likely to be understood by members of the public as indirectly encouraging the commission or preparation of terrorism include every statement which glorifies the commission or preparation (whether in the past, in the future, or generally) of such acts, and is a statement from which those members of the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances.

How a statement is likely to be understood and what members of the public could reasonably be expected to infer from it must be determined having regard both...

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