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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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Mark Tushnet


We have examined the law of free expression in contexts of reasonably well-functioning democracies. The twenty-first century has brought not only new technological challenges, examined in Chapter 6, but also new political ones – in particular, a widespread concern with the possibility of democratic backsliding. Democracies backslide when they move from functioning reasonably well to functioning badly – or not at all, as when politics makes it impossible for legislatures to enact legislation that all agree is important – with the end-point being a transition from democracy to mild or severe authoritarian rule. Recent examples of democratic backsliding may have been facilitated by some of the technological developments we have considered, as charismatic protoauthoritarian leaders utilize social media to bypass existing political parties and other gatekeepers of democracy.

We have known for a long time that democracy itself can lead to democratic decline. Philosopher Karl Popper used the term ‘paradox of liberal tolerance’ – tolerance of the intolerant – in 1945 to describe the problem that liberal societies seem to be committed to tolerating views whose adoption would produce illiberal polities. Every reasonably well-functioning democracy has political parties with anti-democratic programs. If things go reasonably well those parties remain on the fringes, gaining a handful of votes and at most a few seats in legislatures.

Things do not always go well, though, and these parties can move from the fringes to the center of politics, raising the possibility of backsliding. At least since the middle of the twentieth century constitutionalists have...

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