Understanding Speech Rights: Defensive And Empowering Approaches To The First Amendment  

Oleh:

Stein, Laura

Jenis: Article from Journal - ilmiah internasional
Dalam koleksi: Media, Culture & Society vol. 26 no. 1 (Jan. 2004), page 103-120.
Fulltext: 102MCS261.pdf (87.48KB)

Isi artikel

In this article, I endeavour to re-evaluate the relationship between speech rights, media systems and democratic communication. A logical place to begin this re-evaluation is with liberal democratic theory, the dominant and long-standing tradition within US political thought. Concerned primarily with the protection of individual rights and the maintenance of a democratic system of governance (Held, 1987; Holden, 1988; Miller, 1991), liberal democratic theory provides a philosophical foundation for a more comprehensive understanding of speech rights. This understanding encompasses not only normative views of the relationship between individual and society and of the role of state action, but also normative definitions of freedom and its relationship to extant social conditions. Drawing on key liberal political theorists, such as Locke, Mill, Nozick, Friedman, Hayek, Green, Dewey and Barber, I advance the notion that two conflicting views of speech rights coexist within liberal democratic thought. These views, which themselves stem from divergent intellectual traditions within liberalism, are labelled ‘defensive’ and ‘empowering’. Briefly stated, the defensive approach to speech rights presumes that freedom exists in privately controlled spaces that have been secured against government coercion, while the empowering approach holds that freedom exists in public spaces in which individuals find actual opportunities to speak free from both governmental and non-governmental coercion. After reviewing the principal tenets of each approach, I demonstrate how defensive and empowering theories of speech rights are manifest in, and reinforced by, legal understandings of the First Amendment. Specifically, I analyse their role in two Supreme Court cases widely recognized as pivotal in determining print and broadcast speech regimes, Red Lion Broadcasting Co. v. Federal Communications Commission (1969; henceforth Red Lion) and Miami Herald Publishing Co. v. Tornillo (1974; henceforth Tornillo). I conclude by arguing that empowering speech rights offer the best foundation for democratic communication, and by proposing a set of philosophically determined legal principles capable of revitalizing the meaning and function of speech rights in the USA.

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