Defamation, Libel Tourism and the SPEECH Act of 2010: The First ...

the more philosophical or constitutive aspects of free speech. Philosophers from ancient Greece to Immanuel Kant have played key roles in the development of the constitutive free speech justification. In the modern era, insights have been articulated by well-regarded free speech and legal philosophy scholars such as Lee Bollinger, Alan Haworth, Thomas Scanlon, Vincent Blasi, C. E. Baker, Frederick Schauer, and Ronald Dworkin. Perhaps the most appropriate theory to consider first relates to autonomy. The concept of autonomy is simply the state of not being subject to the will of another. Connecting the state of autonomy specifically to free speech is not as intuitive as an instrumental theory, such as the marketplace of ideas, but the connection exists nonetheless. For example, it has been suggested that language is pervasively woven into “the texture of human life” and consequently cannot be separated from individual autonomy.³²

Immanuel Kant argued that set dogmas and formulas amounted to balls and chains and that the only escape was the development of free minds. Kant’s philosophy maintained that “the public use of man’s reason must always be free, and it alone can bring about the enlightenment among men”.³³ This single line from Kant goes to the heart of much of the constitutive free speech justification. Kant envisioned that a legitimate government can only command respect while the citizens are equal and autonomous. Free speech plays an important part in being equal and autonomous. By autonomous, Thomas Scanlon explained that a person is autonomous as long as awareness of the state of the law does not settle the question of whether the citizen will comply. That is, the citizen must still be capable of deciding whether or not to comply with the law, recognising the consequences for noncompliance.³⁴

Ronald Dworkin has been a leading exponent of the importance of individual human dignity as a basis for free speech. He argues that each person must be treated as independently valuable and with equal dignity and respect. Similarly the choices of each individual must be accorded equal respect.³⁵ If each individual is to be accorded equal respect regardless of the merits of their viewpoints, then it follows that the speech, reflecting the thoughts, of each individual must also be respected. When