Free Speech and Human Dignity by Steven J. Heyman

By Steven J. Heyman

Debates over hate speech, pornography, and different kinds of arguable speech bring up matters that visit the center of the 1st modification. Supporters of law argue that those sorts of expression reason critical damage to participants and teams, assaulting their dignity as humans and voters. Civil libertarians reply that our dedication to unfastened speech is measured via our willingness to guard it, even if it reasons damage or offends our private values.


In this significant publication, Steven J. Heyman offers a concept of the 1st modification that seeks to beat the clash among unfastened speech and human dignity. This liberal humanist conception acknowledges a robust correct to freedom of expression whereas additionally offering safety opposed to the main critical sorts of assaultive speech. Heyman then makes use of the idea to light up quite a lot of modern disputes, from flag burning and antiabortion demonstrations to pornography and hate speech.

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In this way, he laid the foundations of modern free speech jurisprudence on the ruins of the natural rights theory which originally supported the First Amendment. ’’∞∑ Similarly, in Whitney v. California (1927), Justice Louis D. Brandeis argued that free speech was indispensable to the democratic process. ∞∏ As Mark A. Graber and David M. ∞π In this way, they could support freedom of speech as vital to an open political system, while denying the charge of judicial interference with substantive policy decisions made by the legislature.

This use of the idea is likely to be controversial: some people will feel that the notion of community rights should have no place in a liberal theory of the First Amendment. In my view, however, this position is mistaken. Apart from absolutist doctrines, all First Amendment theories recognize that speech may sometimes be restricted to safeguard important public values, 42 Rights-Based Theory of the First Amendment such as preserving the peace and protecting the nation from attack. As we saw in chapter 2, modern free speech jurisprudence characterizes such values as state interests and holds that when they are strong enough they can justify restrictions on speech.

By contrast, the Republicans’ second point—that the First Amendment ‘‘was meant as a positive denial to Congress of any power whatever on the subject’’∂≥ —was more doubtful. Although Wilson’s arguments during the ratification debates were ingenious, they failed to persuade the Antifederalists, or the people in general, that their liberties were adequately protected by the structure of the Federal Constitution or that a bill of rights was unnecessary. ∂∂ In his speech of June 1789, Madison emphasized the parallels between the national Bill of Rights and its state counterparts.

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