Apr 4, 2017 03:44 AM
https://aeon.co/ideas/free-speech-is-a-b...reak-it-up
EXCERPT: Free speech is important. It guards against governments’ dangerous tendency to repress certain kinds of communication, including protest, journalism, whistleblowing, academic research, and critical work in the arts. On the other hand, think of a doctor dispensing bogus medical advice, or someone making a contract that she plans to breach, or a defendant lying under oath in court. These all involve written or spoken statements, but they don’t seem to fall within the domain of free speech. They are what the legal theorist Frederick Schauer at the University of Virginia calls ‘patently uncovered speech’: communication that warrants no special protection against government regulation.
However, once we extrapolate beyond the clear-cut cases, the question of what counts as free speech gets rather tricky. A business whose website gets buried in pages of search results might argue that Google’s algorithm is anti-competitive – that it impedes fair competition between sellers in a marketplace. But Google has dodged liability by likening itself to a newspaper, and arguing that free speech protects it from having to modify its results. Is this a case of free speech doing its proper work, or an instance of free speech running amok, serving as cover for a libertarian agenda that unduly empowers major corporations?
To answer this question, we need a principled account of the types of communication covered by free speech. But attempts to provide such an account haven’t really succeeded. We can pick out cases on either side of the divide – ‘Protections for journalism and protest? Yes! For perjury and contracts? No’ – but there aren’t any obvious or natural criteria that separate bona fide speech from mere verbal conduct. On the contrary, as theorists have told us since the mid-20th century, all verbal communication should be understood as both speech and conduct.
Some authors see these definitional difficulties as a fatal problem for the very idea of free speech. [...] Instead of throwing out free speech entirely, a better response might be to keep the safeguards but make their sphere of application very broad...
EXCERPT: Free speech is important. It guards against governments’ dangerous tendency to repress certain kinds of communication, including protest, journalism, whistleblowing, academic research, and critical work in the arts. On the other hand, think of a doctor dispensing bogus medical advice, or someone making a contract that she plans to breach, or a defendant lying under oath in court. These all involve written or spoken statements, but they don’t seem to fall within the domain of free speech. They are what the legal theorist Frederick Schauer at the University of Virginia calls ‘patently uncovered speech’: communication that warrants no special protection against government regulation.
However, once we extrapolate beyond the clear-cut cases, the question of what counts as free speech gets rather tricky. A business whose website gets buried in pages of search results might argue that Google’s algorithm is anti-competitive – that it impedes fair competition between sellers in a marketplace. But Google has dodged liability by likening itself to a newspaper, and arguing that free speech protects it from having to modify its results. Is this a case of free speech doing its proper work, or an instance of free speech running amok, serving as cover for a libertarian agenda that unduly empowers major corporations?
To answer this question, we need a principled account of the types of communication covered by free speech. But attempts to provide such an account haven’t really succeeded. We can pick out cases on either side of the divide – ‘Protections for journalism and protest? Yes! For perjury and contracts? No’ – but there aren’t any obvious or natural criteria that separate bona fide speech from mere verbal conduct. On the contrary, as theorists have told us since the mid-20th century, all verbal communication should be understood as both speech and conduct.
Some authors see these definitional difficulties as a fatal problem for the very idea of free speech. [...] Instead of throwing out free speech entirely, a better response might be to keep the safeguards but make their sphere of application very broad...