Cover

Half-title

Series-title

Title

Copyright

Contents

Acknowledgments

Introduction

1 DEFINING HUMAN RIGHTS AND DELIMITING THE SCOPE OF FREEDOM OF EXPRESSION

1 Preliminaries: What Is a Human Right, and What Activities Implicate Freedom of Expression?

I. What Are Human Rights?

A. Human Rights as Moral Rights

B. The Grounding of Human Rights

II. What Activities Implicate Freedom of Expression?

A. Freedom of Expression and the Variety of Media of Expression

B. Freedom of Expression as the Right of the Audience

C. Freedom of Expression As Implicated By the Purposes Behind, Rather Than the Effects of, Suppression

D. The Core of Any Conception of Freedom of Expression: Evaluative Neutrality

2 Freedom of Expression and Regulations that Affect Messages But are Not Enacted for That Reason

I. The Ubiquity of Track Two

II. Weighing the Value of Messages Against the Value of Content-Neutral Regulations

A. Balancing Speech Interests Against Non-Speech Values Served by Incidental Regulations

B. The Implication of the Failure of Balancing

3 The Puzzles of Governmental Purpose

I. The Various Venues of Governmental Purpose

II. But Still, Why Do We Care About Purpose?

III. Moral Permissibility as a Product of Effects Over Time, Not Momentary Effects

IV. Rules and Optionality

V. Optionality and Switching

VI. Optionality and Legislative Motivation

VII. Rules and Time

VIII. Conclusion

2 THE CORE OF FREEDOM OF EXPRESSION: GOVERNMENT REGULATIONS AND ACTS TAKEN TO AFFECT MESSAGES

4 The Core of Freedom of Expression: Regulations of Conduct for the Purpose of Affecting Messages Received

I. Content Regulations Where the Message Directly Causes Harm

II. Content Regulations Where the Message Causes Harm in Two Steps

A. The Nonregulable Second Step

B. The Regulable Second Step

III. Principle (5) and MessageDriven Governmental Regulation: A Tentative Conclusion

5 Track Three: Government Speech and Subsidies of Speech

I. The Variety of Track Three Laws

II. Pairwise Comparisons

A. Comparing (8) and (7)

B. Comparing (7) and (6)

C. Comparing (6) and (5)

D. Comparing (5) and (4)

E Comparing (4) and (3)

F. Comparing (3) and (2)

G. Comparing (2) and (1)

III. Some Unsuccessful Approaches to Track Three

A. Public Fora Versus Nonpublic Fora

B. Distinguishing Among Subject Matter, Viewpoint, and Speaker Discrimination

C. Guarding Against the Distortion of Views

IV. Conclusion: Does All, None, or Only Part of Track Three Implicate Freedom of Expression?

A. Is Track Three A Sorites Problem?

B. All Track Three Laws Violate Freedom of Expression

C. No Track Three Laws Violate Freedom of Expression

6 Miscellaneous Regulations of Expression

I. The Speech, Beliefs, and Affiliations of Government Employees

A. Public Employee Speech

B. Public Employee Beliefs and Affiliations

II. The Protection of the Exercise of Freedom of Expression

III. The Regulation of Broadcasting

IV. Freedom of Expressive Association

V. Anonymous Speech and the Privacy of Speakers

VI. Private Regulation of Speech

3 THEORETICAL PERSPECTIVES ON FREEDOM OF EXPRESSION

7 General Justifying Theories of Freedom of Expression

I Consequentialist Theories of Freedom of Expression

A. The Promotion of Truth

B. The Promotion of Autonomous Decisionmaking

C. The Promotion of Virtue

D. Do Consequentialist Theories Have the Right Shape for Justifying a Human Right of Freedom of Expression?

II Deontological Theories

III. Freedom of Expression as Concomitant to Democratic Decisionmaking

A. The General Theory

B. Public Discourse Theory

C. Limiting the Human Right of Freedom of Expression to Democracies

IV. Freedom of Expression and Distrust of Government

V. Conclusion

8 The Paradoxes of Liberalism and the Failure of Theories Justifying a Right of Freedom of Expression

I. Liberalism, Epistemic Abstinence, and the Paradoxes of Evaluative Neutrality

A. Liberalism and Illiberal Religions

B. Liberalism, Freedom of Association, and Illiberal Groups

II. Freedom of Expression: Replaying the Paradoxes of Liberalism and Epistemic Abstinence

III. Beyond Liberalism: The General Paradox of Evaluative Neutrality and Normative Theory

EPILOGUE

9 Muddling Through: Freedom of Expression in the Absence of a Human Right

I. Track Two Laws

II. Track One Laws Concerning Messages That Cause Harm in One Step

III. Track One Laws Concerning Messages That Cause Harm in Two Steps

Index