Is There a Right of Freedom of Expression? (Cambridge by Larry Alexander

By Larry Alexander

Larry Alexander deals a skeptical appraisal of the declare that freedom of expression is a human correct. He examines some of the contexts within which a correct to freedom of expression will be asserted and concludes that it can't be supported in any of those contexts. Alexander argues that the criminal safeguard affording freedom of expression is well of price, even though the shape such security takes will range with ancient and cultural circumstances--and, finally, isn't an issue of human rights.

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But defining who is a “producer of information” and what is a “subsidy” requires analytically privileging a certain set of entitlements and background laws, for it is only against that background that we identify who is producing information and what is a subsidy. A Track Two challenge, however, is a challenge to precisely that set of background entitlements and laws on freedom of expression grounds. 39 Paradoxically, the public goods argument works as a potential Track Two freedom of expression argument only if we first decide on freedom of expression grounds which set of entitlements and background laws to privilege; but once that is decided, everything is decided, leaving nothing for the public goods argument to do.

The rejoinder to this position is that although comprehensive normative theories are in one sense the proper bases for evaluating Track Two laws, they are the proper bases only insofar as they are not distinctly related to freedom of expression. Rawlsianism, utilitarianism, and libertarianism are frameworks for assessing the entire corpus juris – to see if it maximizes liberties and wealth, maximizes aggregate or average welfare, or reflects libertarian rights – and as such frameworks, they are important to Track Two analysis.

29 But why they and not O’Brien,30 the sleep-in protesters in Clark v. Community for Creative Non-Violence,31 or the many other actual losers? And if Schneider and the Krishnas, why not my hypothetical Jane, John, Joan, and Jason? As discussed previously, assigning the speech value a constant weight in the calculus – for instance, equal to a significant governmental interest – does not help. Without a theory regarding message effects – what gets said, by whom, to whom, and with what effect – assigning any weight will be arbitrary.

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