A Critical Examination of the Democracy-Oriented Justificatory Theory of Free Speech
Twana A. Hassan · SSRN Electronic Journal · 2015
Democracy-Oriented Theory is a justificatory theory of free speech. Its fundamental assumption is that both the moral justification and the limit of freedom of speech can be based on its utility to the promotion of democracy. Through a critical examination of its implications, this article uncovers five serious flaws in the theory. (1) It fails to distinguish between the intrinsic moral foundation of free speech and its utility. (2) It misrepresents the connection between free speech and democracy by proposing that free speech is a servant to democracy. (3) It unsatisfactorily implies that free speech is not only a form of expresser's freedom, but also a right of the potential recipients. Thus, the theory fails to recognise the fundamental difference between the nature of free speech and the nature of right to know. (4) It cannot be a comprehensive theory of free speech because its rationale excludes all forms and instances of expressive activities that may not directly contribute to democracy. (5) It does not provide sufficient justifications for the harmful consequences of expressions that can be protected based on the democracy-oriented rationale.