In this paper I offer a blueprint for lawful government speech by asking not what messages a 'good' government should use its expressive powers to communicate but what a 'bad' government cannot get away with saying. I argue that the limitations imposed by free speech doctrine are inadequate and, more importantly, do not go to the heart of our moral concern with government speech. I suggest instead that we can get a better grasp of that moral concern by focusing on the concept of political legitimacy. I then propose an elaboration of political legitimacy that highlights the connection between government speech and equal standing, on the one hand, and democratic stability, on the other. From this dual connection I derive a number of (non-exhaustive) criteria for what I call 'tolerably nasty' government speech.
Ronald Dworkin is well known for his defence of a strong right to free speech, which for him flows from his second principle of human dignity, the principle of personal responsibility. This principle prohibits moralism and paternalism and thus prevents the government from restricting a person’s speech on the grounds of the wrongness of the message or its offensiveness. While I believe that this is correct, contemporary restrictions on speech are often based on (at least superficially) different reasons, such as the protection of the dignity or equal standing of the victims of hate speech. My argument will be that if we want to defend Dworkin’s strong speech right, we need to make an additional, controversial assumption related to the idea of the separateness of persons.
Freedom of speech and the right to privacy appear to clash. However, as this paper shows, speech and privacy share key structural foundations, upon which legitimacy claims rest. Scholars such as Habermas, Meicklejohn and Post, underlie the centrality of public discourse as a pre-condition for legitimating political values. While these procedural approaches have been criticized, they nonetheless still play an important role in explaining segments of free-speech jurisprudence. But legitimation is threatened by the emerging digitally-supported echo-chambers, which, it appears, undermine the deliberative dimension assumed by discourse theories. Building on, yet diverting from, the work of Julie Cohen on decisional autonomy, the paper argues for reconfiguring the right of privacy to empower individuals to migrate and navigate between such eco-chambers, thereby seeking to minimize the legitimacy deficit associated with the contemporary architecture of political discourse.
This is a paper about public nudity. It asks: what, if anything, is the problem with public nudity? In a number of jurisdictions, public nudity is conceived of as problematic in some way: a conception that is reflected in and reinforced by restrictions that are put in place in relation to it. The purpose of this paper is to examine, through the lens of the right to freedom of expression, examples of these different restrictions, their underlying constructions of ‘the public’, and the broader legal discourse surrounding public nudity through the lens of the right to freedom of expression. Drawing on a number of case studies from different jurisdictions it makes a case for the treatment of public nudity as a form of expression, and suggests that portrayals of a tension between public nudity and freedom of expression are a product of a problematic and unstable construction of ‘the public’.