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From the perspective of traditional free speech analysis, this book reaches a rather surprising, if not radical, conclusion. Free speech theory has generally been divided into two types of justification: instrumental or constitutive. The instrumental theories state that freedom of expression is desirable to the extent that it helps to attain a particular goal––usually political, such as democracy––whereas the constitutive justifications argue that freedom of speech is desirable simply because free expression is part of individual liberty or autonomy, and its desirability does not depend on attaining specific goals. It should not be surprising that, within the realm of courts and legislators, the instrumental approach has gathered far more traction. In contrast to the traditional dichotomy of speech justifications, this book argues that all free speech falls within the instrumental justification because broad rights of freedom of expression extending beyond political speech are not just a matter of being morally desirable but are essential for the functioning of modern complex societies that exhibit extensive division of labour. To the extent that freedom of expression can be justified through an instrumental––as opposed to a constitutive––justification, the likelihood of judicial recognition may be enhanced as one moves from arguments that may be viewed as esoteric to positions that are concrete and pragmatic.
Virtually all existing free speech theories focus on the content of speech. Yet, in the United States the Supreme Court, having briefly accepted content as the linchpin for constitutionally protected speech, quickly returned to its initial perspective of attaching constitutional protection based on the status of the target of the speech––the so-called public figure. From the traditional free speech perspective, the American approach has led to a hodgepodge of rules that appear at odds with sound theory. However, once viewed through the lens of sociological theory, the American approach is not only reasonable but also harmonious with the sociology of speech. While not citing sociological theory, the US Supreme Court has a history of employing sociological information to decide constitutional issues and, as it turns out, this is also the case with the First Amendment.