| | |
|
NathanielCriderSecondPaper 3 - 04 May 2015 - Main.NathanielCrider
|
| |
| META TOPICPARENT | name="SecondPaper" |
|---|
The First Amendment & Autonomy | | | Introduction | |
<
< | The Fourth Amendment's anachronistic focus on places is insufficient to protect the privacy of persons. But like water squeezed from one end of a balloon to another, the privacy right might be displaced and secured elsewhere in the Constitution. In this respect, the First Amendment, which protects an individual's autonomy interest in free expression, is a prime candidate. | >
> | The Fourth Amendment's anachronistic focus on places is insufficient to protect the privacy of persons. But like water squeezed from one end of a balloon to another, the privacy right might be displaced and secured elsewhere in the Constitution. In this respect, the First Amendment, which protects an individual's autonomy interest in free expression, is a prime candidate. | | | There are, however, a variety of autonomy-based theories of free expression. Each offers a more or less plausible description of our system of free expression. And each protects a different range of autonomy interests, which may be more or less coextensive with privacy interests.
| | | Our first theory posits that free expression it is a good in and of itself. To distinguish the intrinsic goodness of free expression from other actions, it is often articulated in terms of human beings’ unique rational capacities. Because these capacities integral to a person's inherent nature, any limitation on them is "the greatest displeasure and indignity to a free and knowing spirit that can be put upon him." | |
<
< | To its credit, this view offers broad protection of freedom of thought. But it suffers from several deficiencies. For one thing, [[https://web.duke.edu/secmod/primarytexts/Dostoevsky-GrdInq.pdf][[freedom, in a broad sense, is not essential to happiness or pleasure], so it is doubtful that any particular freedom is essential to happiness. And to say that freedom of thought is essential to happiness tells us little about how to balance the inevitably conflicting desires of listeners, speakers, and third parties affected by its consequences. | >
> | To its credit, this view offers broad protection of freedom of thought. But it suffers from several deficiencies. For one thing, freedom, in a broad sense, is not essential to happiness or pleasure, so it is doubtful that any particular freedom is essential to happiness. And to say that freedom of thought is essential to happiness tells us little about how to balance the inevitably conflicting desires of listeners, speakers, and third parties affected by its consequences. | | | Free Expression as Facilitating the Good Life | | | A final theory argues that democracy requires that citizens experience their state as an example of authentic self-determination. Because freedom of thought is necessary for the individual to participate in the processes through which citizens come to identify a government as their own, the state may not cut an individual out of the participatory processes or regulate public discourse so as to promote a particular vision of collective identity. Subordinate to the autonomy interests of the individual, legitimate democratic government therefore demands free and open public discourse. | |
<
< | That the rhetoric of this argument finds support in severalopinions of the court suggests either its potency or incomprehensibility. But even supposing the case of the former, the participatory theory is only nominally concerned with those interests central to an autonomy-based account of free expression. And whether a regulation actually facilitates democratic participation will be uncertain in paradigm cases, much less cases in which core autonomy interests are directly implicated. | >
> | That the rhetoric of this argument finds support in several opinions of the court suggests either its potency or incomprehensibility. But even supposing the case of the former, the participatory theory is only nominally concerned with those interests central to a strong autonomy-based account of free expression. And whether a regulation actually facilitates democratic participation will be uncertain in paradigm cases, much less cases in which core autonomy interests are directly implicated. | | | Conclusion |
|
|
|
|
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
|
|
| | |