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

a false statement that harms reputation, in practice, any statement that causes damage to reputation is deemed defamatory, unless and until the publisher proves the factual accuracy of the statement.

If protection of reputation is one consideration in formulating defamation law, freedom of speech is the other concern. The philosophy of free speech has origins dating back to the times of democratic city states of ancient Greece, and numerous theories and concepts have developed to explain why freedom of speech is necessary. Ronald Dworkin and others have maintained that there are two basic types of justification for free speech: the instrumental justification and the constitutive justification.¹¹ This dichotomy has proven to be workable because all of the result-oriented reasons for free speech are defined as instrumental with the moral residue falling within the constitutive justification. As defined by Dworkin, the instrumental justification for free speech is that free speech is desirable because it does offer benefits to the public, even though there may not be an inherent moral right to freedom of speech.¹² Instrumental free speech assists in the achievement of specific goals such as the efficient election of public officials in a democracy. The constitutive justification also holds that freedom of speech is valuable because it is an essential constituent of a just society and an essential part of human dignity, not because it is an instrument for creating a better society.¹³ The constitutive justification perhaps can be distilled as meaning that free speech is intrinsically a good and moral ideal without regard to how well it helps to achieve specific goals such as democracy or self-government.¹⁴ This justification accommodates the more visceral response that free speech is good because we like it.

Perhaps the most cited and well-known classical argument in favour of free speech appears in the mid-nineteenth-century writings of John Stuart Mill.¹⁵ Fundamentally, Mill maintained that free and open discussion was essential to the ultimate discovery of the truth.¹⁶ Mill’s theory has also been described as the “best perspectives or solutions” theory.¹⁷ The premise is that the absence of restraints on speech will facilitate discovery of the truth.¹⁸ While Mill’s arguments have implications in both instrumental and constitutive camps, ascertainment of truth most