| Chapter 1: | The Nature of Speech and Freedom of Speech |
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because it is good for the well-being of the individual––a scholarly statement meaning free speech is good because “I like it” or “It makes me feel good.” While this might appear to be only a visceral response and hardly the material on which legal doctrine is constructed, this reasoning, in fact, very roughly summarises aspects of Immanuel Kant’s significant contribution to freedom of speech discourse. With the exception of the First Amendment, all of the major bodies of doctrinal law expressly provide for freedom of speech balanced against some other interests such as defence or public order. Yet, the philosophical theories generally do not recognise these limitations. However, application of sociology theory justifies the countervailing social forces that permit the moderation of otherwise unrestricted freedom of expression.
It seems that all of the free speech theorists have put their own gloss on the subject and further refine and parse out specific reasons and arguments for freedom of speech. Not surprisingly, many of these theories overlap or are simply subsets of existing theories. However, virtually all of the theories can be categorised within a taxonomy used by the American legal philosopher Ronald Dworkin and others that identifies the theories as falling within instrumental or constitutive justifications. The instrumental justification points to specific outcomes that are fostered by types of free expression. This body of theory is most commonly applied to political speech. An example of this is the widely held belief that democratic government is supported by freedom of expression concerning political parties and candidates for elective office. In contrast, the constitutive justification relates to arguments that speech is not desirable to attain a specific end or goal, but rather that freedom of expression is desirable for its own intrinsic value such as enhancing human dignity.
Dworkin actually navigated a rather direct approach toward a sociological description of the constitutive justification but did so without recourse to specific sociological theory:
First, morally responsible people insist on making up their own minds about what is good or bad in life or in politics, or what is