| Chapter 1: | The Nature of Speech and Freedom of Speech |
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on its face only applies to government initiated or sponsored interference with speech, it is not always easy to distinguish between private and public activities. This seminal question for any First Amendment analysis promises to become even more challenging as governments increasingly elect to contract public services to private entities. However, the trend has been for increasingly restrictive interpretation of “public” thereby removing matters found to be essentially private from the protection of the First Amendment.
Despite the broad language of the First Amendment, even in the United States, free speech is not always assured even in such bastions of debate and learning as universities. Today, many universities have in place codes of conduct that govern speech with the goal of maintaining a more pleasant learning experience for students. These limitations, even if not recognised by traditional free speech theory, find justification when sociological principles are applied. In jurisdictions where the right to free speech is not expressly guaranteed by a constitution, the laws can be more flexible with the result that free speech may not really be a guaranteed right but exists only as what remains after considering the laws restraining speech. Or, in the case of Germany, free speech is a recognised right but it exists as a right subordinate to the right to dignity, including privacy. In the next chapter, a sociological explanation is articulated to provide an explanation for freedom of speech rights that fluctuate from one society to the other.
Recognising that various laws provide for some level of freedom of expression as well as limits on that freedom, the question remains as to what constitutes the appropriate limits or rather, what type of speech should be free. If the question is posed, “do you desire freedom of speech?” It is difficult to imagine anything other than a strong affirmative response. For hundreds of years, but most particularly in the past one hundred and fifty years, legal philosophers and legal theorists have been compiling specific reasons why freedom of speech is desirable. At one extreme, there is an entire branch of free speech theory, known as the constitutive justification, built around the concept that free speech is desirable