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4 Law & Phil. 1 (1985)

handle is hein.journals/lwphil4 and id is 1 raw text is: DOUGLAS N. HUSAK

ABSTRACT. Legal and political philosophers (e.g., Scanlon, Schauer, etc.)
typically regard speech as special in the sense that conduct that causes harm
should be less subject to regulation if it involves speech than if it does not.
Though speech is special in legal analysis, I argue that it should not be given
comparable status in moral theory. I maintain that most limitations on state
authority enacted on behalf of a moral principle of freedom of speech can be
retained without supposing that speech is entitled to a degree of protection
not afforded to (most) other forms of conduct. My argument questions
some standard assumptions made by philosophers about the relationship
between moral and legal principles.
Speech is one of several different kinds of conduct, and the
alleged difficulty confronting defenders of a moral principle of
freedom of speech is to explain the basis on which this form of
conduct is entitled to a wider range of protection from state
interference than (most) forms of conduct not involving speech.
According to this approach, the general moral principles that
govern when conduct may be subject to legal sanctions include an
exceptive clause that affords some degree of special protection to
speech. If the general moral considerations that warrant state
regulation of conduct and thereby reduce personal liberty are
indifferent to whether conduct does or does not involve speech,
then there is nothing special about speech, and the widespread
conviction among philosophers to the contrary is mistaken.
This description of the burden to be satisfied by defenders of
a principle of freedom of speech has been offered in a number of
recent important philosophical contributions to free speech theory.
Frederick Shauer writes:
When a Free Speech Principle is accepted, there is a principle according to
which speech is less subject to regulation (within a political theory) than
other forms of conduct having the same or equivalent effects. Under a Free
Speech Principle, any governmental action to achieve a goal, whether that

Law and Philosophy 4 (1985) 1-15. 0167-5249/85.10.
© 1985 by D. Reidel Publishing Company.

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