The troubles of free speech theory

Abstract

We seem to think there is something “special” about freedom of speech, but on closer examination, this proposition becomes difficult to maintain. This paper assesses and problematises the search for a “free speech principle”. A “free speech principle” denotes the attempt by legal and political theorists to isolate free speech as a standalone, independent value; to find a reason that sets speech apart from arguments regarding a commitment to liberty in general. This search is seemingly destined to revolve around endless conceptual and terminological disputes regarding what is and isn’t justified “free speech”, and attempts to categorise speech that should be precluded by the very freedom it proclaims. In an attempt to understand these difficulties I explore the arguments of Stanley Fish and the idea of free speech as a “social condition” in a recent case. The result is the conclusion that in spite of its universal aspirations, the idea of free speech may be more particular (and thus contested) than is usually acknowledged.