Extract

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,...