Public Law & Legal Theory
Free societies employ a variety of institutions — including courts and schools — in which speech is heavily regulated on the basis of its content (and with regard to the cognitive infirmities of listeners) in order to promote other desirable ends, including discovery of the truth. I illustrate this with the case of courts and rules of evidence. Three differences between courts and the polity at large might seem to counsel, of course, against extending that approach more widely. First, the courtroom has an official and somewhat reliable (as well as reviewable) arbiter of the epistemic merits, while the polity may not. Second, no other non-epistemic values of speech are at stake in the courtroom, whereas they are in the polity. Third, the courtroom’s jurisdiction is temporally limited in a way the polity’s may not be. I argue that only the first of these — the "Problem of the Epistemic Arbiter" as I call it — poses a serious worry about speech regulation outside select institutions like courts. I also argue for viewing "freedom of speech" like "freedom of action": speech, like everything else human beings do, can be for good or ill, benign or harmful, constructive or pernicious, and thus the central question in free speech jurisprudence should really be how to regulate speech effectively — to minimize its very real harms, without undue cost to its positive values — rather than rationalizing (often fancifully) the supposed special value of speech. In particular, I argue against autonomy-based defenses of a robust free speech principle. I conclude that the central issue in free speech jurisprudence is not about speech but about institutional competence; I offer some reasons — from the Marxist "left" and the public choice "right"— for being skeptical that capitalist democracies have the requisite competence; and make some suggestive but inconclusive remarks about how these defects might be remedied.
Brian Leiter, "The Case Against Free Speech" (University of Chicago Public Law & Legal Theory Working Paper No. 481, 2014) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2450866..