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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


, not a comprehensive survey of all the quite interesting issues that arise in connection with government efforts to regulate or prohibit speech. It says almost nothing, for example, about whether there are reasons supporting different forms of regulation of newspapers on the one hand and radio and television on the other. The role that a speaker’s motivation plays in triggering or limiting regulation is mentioned occasionally but not given systematic treatment. Each reader will almost certainly come up with other topics that he or she thinks ought to have been addressed. The book’s aim is to develop a structure within which those topics might be inserted, though even here there will be shortfalls.

In thinking about free expression law we have to avoid one pitfall, while acknowledging that the concern underlying it has to be taken into account. The pitfall is in focusing on threats to free expression in authoritarian or mildly authoritarian regimes. It is not a good argument against some free expression doctrine to urge, ‘Imagine what would happen if [insert the name of your favorite dictator or repressive regime] could invoke this rule.’ One can usually be reasonably confident that judges in that regime would not be able effectively to invoke some doctrine limiting the government’s power. So, a stringent rule designed to control repressive rulers will probably fail to do so, and might prevent non-repressive regimes from adopting sensible policies. The domain of a real law of free expression is the flawed but reasonably...

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