Freedom of Speech and the Press, Public Discourse and Democratic Governance: Toward a Critical Theory

• Author: Simeon C. R. McIntosh
• Pages: 92-162

FUNDAMENTAL RIGHTS AND DEMOCRATIC GOVERNANCE

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In every Western constitutional democracy, the right of free speech is a

fundamental constitutional right. In some cases, the United States being

the classic example, freedom of speech (and the press) is given pride of

place among the other fundamental constitutional rights. This is so

because the right of free speech is thought to be protective of some of

our most basic human rights, most notably, the right of conscience.

Speech is an object of constitutional protection because speech speaks

to certain values implicit in specific and discrete kinds of social

practices thought to be critical to our individual and collective life.1

This point is aptly captured in Professor Frederick Schauer’s notion of

a ‘free speech principle’, which aspires to explain why courts should

constitutionally demand of the state compelling justification for

limitations on speech. A critical theory of speech should therefore

capture how speech is integrated into and constitutive of certain social

practices of fundamental value to us, and when, and under what

circumstances, the state may legitimately restrain speech. Professor

Schauer, in his very influential work,2 has attempted to do just that;

and this chapter draws heavily on his work, and those of other scholars,

such as Ronald Dworkin, Robert Post and David Richards, in an attempt

to construct a critical theory of free speech.

The value of free speech encompasses such notions as the pursuit

of truth, democratic self-governance, individual self-realization and

FREEDOM OF SPEECH AND THE PRESS,

PUBLIC DISCOURSE AND DEMOCRATIC

GOVERNANCE: TOWARD A CRITICAL

THEORY

Chapter 2

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Freedom of Speech and the Press, Public Discourse and Democratic Governance

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the pursuit of the good. The liberty to express one’s thoughts and to

form them through unrestricted reading and listening is an essential

attribute of human autonomy, of what it means to be a self-directed

person possessed of human dignity.3 Also, free speech is understood

to be the fundamental mechanism of the search for truth, at both the

individual and the societal levels.4 On this view, a free ‘marketplace of

ideas’ produces, according to Professor Vincent Blasi, ‘a more accurate,

probing, and richly textured understanding of fact and value than can

any prescribed orthodoxy.’5 But free speech is above all an invaluable

means of civic education and participation in governance – specifically,

democratic governance.6

‘Democracy’, in other words, is a very prominent and important

form of social order which the value of free speech embraces. It speaks

to all the complicated forms of social interaction by which we govern

ourselves. From a political standpoint, democracy strives to create a

structure of governance of ‘a common will, communicatively shaped

and discursively clarified in the political public sphere’.7 According to

Professor Schauer, the argument from democracy is taken to be one of

the independent arguments that help to define freedom of speech as

an independent principle of political philosophy. The argument from

democracy presupposes the a priori acceptance of democratic principles

as the appropriate guidelines for the organization and governance of

the state.8 Schauer’s working definition of democracy is a system of

governance that acknowledges that ultimate political power resides in

the population at large; that the people as a body are sovereign; and

that they, either directly or through their elected representatives, in a

significantly non-fictive sense actually control the operation of

government.9 The argument for democracy therefore views freedom of

speech as a necessary component of a society premised on the

assumption that the population at large is sovereign.10 ‘This political

basis for a principle of freedom of speech [therefore] leads to a position

of prominence under the argument for speech relating to public affairs,

and even more prominence for criticism of government officials and

FUNDAMENTAL RIGHTS AND DEMOCRATIC GOVERNANCE

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policies.’11 In a constitutional democracy, freedom of speech is seen as

crucial in providing the sovereign electorate with the information it

needs to exercise its sovereign power, and to engage in the deliberative

process requisite to the intelligent use of that power. Moreover, the

freedom to criticize makes it possible to hold governmental officials

and public servants properly accountable to the people.12

A critical defence of the principle of freedom of speech derives

from Rawls’s notion of political pluralism, particularly his idea of an

‘overlapping consensus’. Generally, an overlapping consensus can be

said to exist in a society when the political conception of justice that

regulates its basic institutions is endorsed by each of the main religious,

philosophical, and moral doctrines likely to endure in that society

from one generation to the next. The operative premise here is that

modern democratic society is characterized by a plurality of conflicting

comprehensive religious, philosophical, and moral doctrines; therefore,

only a political conception of justice that gives pride of place to such

fundamental values as freedom of speech and religion can hope to

gain the allegiance of the substantial majority of the populace.13

The principle of freedom of speech is therefore a requisite principle

of free institutions comprising a democratic state; for only the

oppressive use of state power can otherwise maintain a continuing

common affirmation of one comprehensive religious, philosophical,

or moral doctrine. But an enduring and secure democratic regime, one

not divided into contending doctrinal confessions and hostile social

classes, must be willingly and freely supported by at least a substantial

majority of its politically active citizens. Thus, in order for a conception

of justice to serve as the public basis of justification for a constitutional

regime, it must be one that widely different and even irreconcilable

comprehensive doctrines can endorse.14

This underscores the fact that the principle of free speech is not

only critical to the survival of a democratic regime; it is a necessary

component of any adequate conception of justice for constitutional

democracy. It goes to the fundamental question of the legitimacy of