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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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New (?) challenges

Mark Tushnet

Extract

Free expression law developed in response to publication of books and pamphlets critical of government policy (Chapter 1), and to street demonstrations and riots (Chapter 5). The law had to adapt to changing technology – daily newspapers rather than occasional pamphlets, radio and then television. But, it turned out, the basic principles developed to deal with the old problems were generally suitable to deal with the new ones. Some minor tweaks were needed, especially in schemes for licensing access to limited resources (including city streets and radio spectrum). The guiding principles and the institutional concerns that gave them structure turned out to be relatively unchanging.

Many observers believe that modern technological developments – social media and the Internet generally – have pushed us into a new era. Formulating the concerns requires some care, because the new media present several distinct problems. Regulations that are constitutionally permissible for older forms of communication may turn out to be ineffective when applied to new forms. Regulations that might be effective might also be impermissible under current understandings of free expression law. That might generate pressure to reformulate those understandings so that effective regulation can be maintained. One specific source of ineffectiveness is geographic: The new media can escape domestic regulations by ‘relocating’ elsewhere, in ways that newspapers cannot. The balance between the harms of speech and the benefits of allowing it might change as the scale of distribution of information changes. It might be possible to overcome old institutional constraints that structure free expression...

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