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

the state suppresses the thoughts, as reflected in the speech, of the individual, injury is done to the individual’s dignity.³⁶ For democracy to function, the free speech rights of the individual must be preserved and must not be subject to suppression even if the majority does not want those views expressed. In this respect, a constitutive theory connects back to the instrumental democracy theory.

The concept of individual dignity is also in harmony with Thomas Scanlon’s argument that freedom of speech is essential to protect individual sovereignty and with Kant’s belief in autonomy. Scanlon suggested that all decisions, whether required by law or not, must ultimately be made by the individual and therefore the individual must be entitled to collect all relevant information concerning the decision that must be made.³⁷ Freedom of speech must be assured so as to assure that the individual makes the best decision concerning the matter at issue. Freedom of speech is essential as a source of choices. This argument focuses on the individual as the listener rather than the speaker.³⁸ Consequently the theoretical arguments built around individual sovereignty are not only an explanation of the right to speak but also of the right to listen, and at its root, the theory is predicated on inherent dignity or rights of the individual.³⁹ Kant’s autonomy argument has also been recast in terms of free speech nurturing good character among citizens. On the one hand, freedom of expression may nurture inquisitiveness, initiative, and courage.⁴⁰ On the other hand, it could also be argued that freedom of expression enables individuals so disposed to join in evil activities and go along with the crowd. Perhaps the good character concept travels full circle back to the Kantian concept of autonomy. From a legal perspective, it would seem that freedom of expression, for better or worse, enables the individual to pursue their goals whether these are beneficial or harmful.

The liberty theory, not to be confused with the democracy theory which is an instrumental theory as opposed to being an individual or constitutive theory, also has clear connections to the concept of autonomy. C. Edwin Baker developed the liberty theory as an alternative to the instrumental marketplace of ideas. In this approach, free speech is protected because of its value to the individual and because it is part