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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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Justifications for regulating speech

Mark Tushnet


The literature on freedom of expression is dominated by exercises in political theory (in addition to expositions of free expression law in particular jurisdictions and on specific topics). Scholars ask what free expression contributes to maintaining and deepening democratic self-governance. With those accounts in hand, scholars then ask what kinds of regulations are compatible with them. Sometimes, of course, the accounts point in different directions: A regulation compatible with a ‘discovery of truth’ account might be incompatible with an autonomy-based account. Theorists hope either that one account has greater force than others or that the accounts will converge rather than diverge in the large bulk of cases. Their writings tend to vindicate that hope either by presenting one account as clearly superior to alternatives or by arguing that a challenged regulation is permissible or impermissible under any account.

Political theories of free expression come in many variants, which poses an additional difficulty. Consider accounts in which free expression contributes to the development and maintenance of a healthy system of democratic self-governance. What constitutes a healthy democracy is itself a deeply contested question. Is a democracy healthy only when large numbers of people actively participate in politics or, more narrowly, vote? When does a low level of participation indicate satisfaction with how things are going; when does it indicate alienation from the political system? To know whether a regulation is consistent with or incompatible with democratic self-governance, we would have to agree on a definition of the latter. And,...

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