Republican Free Speech

Free speech debates assume a liberal conception of freedom. The problem with the liberal conception of freedom is that it often results in an irreconcilable conflict of rights. A republican concept of freedom dissolves this conflict.

Liberal freedom is freedom from interference. A law that regulates expression compromises liberal freedom because it interferes with your ability to say what you want.

A liberal freedom of speech will therefore frequently result in a standoff between two important rights or values. Take obscenity regulations as an example. Feminists argue that pornography infringes the equality rights of women because it either is or causes the subordination of women by men. A law prohibiting some form of pornography would compromise liberal freedom. It would also, however, promote the equality of women. So we have a standoff between liberty and equality.

Republican freedom is friendlier to law than liberal freedom. Republican freedom is freedom from domination rather than freedom from interference. If the people control the law making so that the laws represent the common interest, then the law will not dominate. It is a matter of some debate what it means for a people to control the law making. Suffice it to say that it is something along the lines of a democratic government with a constitutional setup including such things as the rule of law, bills of rights, separation of powers, and so on. A law passed by such a government would not compromise anyone’s freedom. In fact, the purpose of laws in a republican constitution is the creation of freedom by removing the possibility of private domination.

Republican freedom dissolves the standoff between liberty and other rights and values because laws regulating free expression do not compromise anyone’s freedom. A law restricting certain kinds of pornography does not compromise anyone’s freedom. It does however prevent the subordination of women. There is therefore no standoff between important rights or values. The only right at stake is the freedom of women.

Republican free speech is better than liberal free speech because it removes the irreconcilable conflicts between liberty and other rights and values.

In the following video, Larry Lessig makes a republican inspired argument for regulating the political speech of corporations. His reasons are not the same as the ones I give above. He seems more motivated by the rhetorical concern of what will be more likely to persuade US judges.