The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Journal of Free Speech Law: "Free Speech Apart from Law," by Prof. Jeremy Waldron (NYU)
Just published as part of the "Non-Governmental Restrictions on Free Speech" symposium; the Introduction (the article, 2 J. Free Speech L. 107 (2022), is here):
Is there a moral principle of free speech? If so, how does it work? We are accustomed to think of free speech as something set up and sustained by law—by constitutional law in the United States upheld with strong judicial review—in a way that makes it hard to focus our thoughts on what morality in and of itself requires in this area. But it is something that's important to consider.
In this essay, I would like to get an understanding of some philosophical dimensions of the possible operation of the free speech principle—or a free speech principle—considered apart from law. Since domain makes a difference to such a principle's mode of application and what is at stake in the way it operates—I mean the domain of law as opposed to the domain of morality—I would like to set out some of the difficulties that might be involved in formulating and applying a free speech principle, unaided by law, in a purely moral or social domain. And in the second half of this essay, I shall call in aid the example of John Stuart Mill whose essay On Liberty tried to grapple honestly with the difficulties that a purely moral principle of free speech would have to face.
The question is not just academic. It is worth asking, first, as a practical matter, because we want to know how free speech operates at present in the United States in areas where the First Amendment does not apply—namely, areas that do not involve state action. The constitutional principle of free speech applies to the federal government and the states, not to private persons or entities. Congress may not pass any law abridging freedom of speech and (in our understanding of the Fourteenth Amendment) nor may state, county, or municipal legislators, or any other official entity like a state agency or a state university. But these are far from the only power holders in society, far from the only entities in a position to limit or challenge the free expression of ideas. So we may ask: How—in the sense of "by what principles?"—are these other power holders constrained?
