Law and Philosophy (2015) 34: 119140

DOI 10.1007/s10982-014-9220-y

 Springer Science+Business Media Dordrecht 2014

FREDERICK SCHAUER*

FREE SPEECH ON TUESDAYS

(Accepted 26 September 2014)
I

What is it to say that a right exists? As a purely philosophical matter,

questions about the existence (or not) of a right implicate the deepest
issues of meta-ethics, and to assert that a right exists is to stake out a
claim about just what rights are and where they come from. But on a
more down-to-earth level, rights are (or are not) created as a matter
of positive law, they are (or are not) recognized in politics, policy,
and culture, and they are (or are not) talked about and used as
rhetorical weapons in numerous public and private contexts. And in
each of these non-deeply-philosophical domains, there emerge
questions about exactly which rights exist, and about just which
rights should be created or recognized.
Questions about what it is for a right to exist, and what it means
to recognize, talk about, create, and enforce a right arise with particular frequency in the context of what is variously known as
freedom of speech, freedom of expression, and freedom of communication. There is thus good reason to focus on this right, even if
primarily as an example of a larger problem. The larger problem is,
loosely, one about the relationship of particular rights to more
general ones. We can call it the problem of nested rights. This
problem, whose nature will be explained presently, is pervasive
throughout the domain of constitutional, legal, and political rights,
but is also, as we shall see, a problem with a special resonance as we
examine the relationship between a right to freedom of speech and a
* Earlier versions of this paper were presented at the New York University Political Theory
Workshop and at the University of Chicago Constitutional Law Workshop. I am grateful to the
organizers, Liam Murphy and Samuel Scheffler, and Aziz Huq and David Strauss, respectively, and to
the audiences for their challenging questions. I have also benefited from comments on earlier drafts by
Leslie Kendrick, Micah Schwartzman, and John Tasioulas.

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right to liberty. This paper thus has two goals, one being to clarify an
important foundational issue in the theory of freedom of speech and
the other being to make a contribution to our understanding of the
structure of rights.
II

I begin, for reasons that will become clear presently, with what I
trust is the relatively uncontroversial observation that the formal
legal protection for freedom of speech and freedom of the press is as
great in the United States as in any other liberal democracy. I do not
claim that this is necessarily a good thing. Greater free speech protection often comes, after all, at the expense of equality, dignity,
privacy, accuracy, reputation, safety, and other countervailing and
important values. And there are undoubtedly areas in which
American free speech protection, although likely greater in the
aggregate than elsewhere, may be less on some dimensions than it is
in other countries. Moreover, the actual realization of free speech
rights in the United States frequently falls short of what is formally
and legally protected. But these questions are for another day. For
now, I begin with the basic proposition that the right to free speech
is sufficiently constitutionally, legally, and politically robust in the
United States as to support the descriptive, and only descriptive,
claim that a right to free speech exists in the United States.
This descriptive and empirical claim allows us to bracket otherwise important questions about just how much free speech, and of
what kind, there needs to be in country C for us to be able to say that
a right to free speech exists in C. And thus the United States, for
better or for worse, is a good place to begin the analysis because it
would be at least plausible to conclude that there is a right to free
speech in the United States that the right exists in the United States.
And for present purposes, nothing more need be said.
III

It follows from the fact that there is a right to free speech in the
United States that there is a right to free speech in the United States
on Tuesdays. Because the statement that there is a right to free
speech implies a right of some generality across both space and time,

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it implies as well that there is a right to free speech on Mondays,

Tuesdays, Wednesdays, Thursdays, Fridays, Saturdays, and Sundays.
And the fact that there is a right to free speech on Mondays,
Tuesdays, Wednesdays, Thursdays, Fridays, Saturdays, and Sundays
entails that there is a right to free speech on Tuesdays.1
But although it is true that there thus exists a right to free speech
on Tuesdays, it would be odd for someone to say that there is a right
to free speech on Tuesdays. And that is because to say that there is a
right to free speech on Tuesdays implies something different or
special about free speech on Tuesdays as compared to some background or baseline understanding. Whether we reach this conclusion
by way of Gricean conversational implicature,2 or with John Searles
notion that there is no remark without remarkableness,3 or through
the lawyers maxim of expressio unius est exclusio alterius (the
expression of one is the exclusion of the other), the basic idea is that
to say that there is a right to free speech on Tuesdays presupposes
something about free speech on Tuesdays that distinguishes it from
free speech on Mondays, Wednesdays, Thursdays, Fridays, Saturdays, and Sundays.
IV

If asserting that there is free speech on Tuesdays presupposes

something special about free speech on Tuesdays, and consequently
that it is a conversational error to make specific reference to Tuesdays alone when in fact what exists is a seven-day-a-week right, the
1
Entails is perhaps too strong. The proposition there is a right to / might be a generic (see SarahJane Leslie, Generics: Cognition and Acquisition, Philosophical Review, vol. 117 (2008), pp. 147) in that
the truth of a generic proposition can tolerate exceptions. See Mark Johnston and Sarah-Jane Leslie,
Concepts, Analysis, Generics and the Canberra Plan, Philosophical Perspectives, vol. 26 (2012), pp. 113
171; Sarah-Jane Leslie, Sangeet Khemlani, and Sam Glucksberg, All Ducks Lay Eggs: The Generic
Overgeneralization Effect, Journal of Memory and Language, vol. 65 (2011), pp. 1531. And see also, but
using slightly different terminology, Frederick Schauer, Profiles, Probabilities, and Stereotypes (Cambridge,
MA: Harvard University Press, 2003). Thus, just as Volvos are reliable is a statement whose truth can
tolerate unreliable Volvos, and birds fly can tolerate flightless birds, so too might there is a right to /
tolerate instances in which activities that are admittedly within the scope of the right are nevertheless
not recognized. For purposes of this paper, however, nothing turns on this otherwise interesting
possibility, and I will say no more about it here.
2
H.P. Grice, Studies in the Way of Words (Cambridge, MA: Harvard University Press, 1989), and
especially Presupposition and Conversational Implicature, ibid., pp. 269282.
3
John R. Searle, Speech Acts: An Essay in the Philosophy of Language (Cambridge: Cambridge University Press, 1969), p. 144. See also John R. Searle, Expression and Meaning (Cambridge: Cambridge
University Press, 1979), pp. 6263; and Herman Tennessen, What is Remarkable in Psychology, in
Joseph R. Royce and Leendert P. Mos, eds., Annals of Theoretical Psychology, vol. 2 (New York: Plenum
Press, 1984), pp. 273278.

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same analysis can be pursued at one remove to help us understand

the nature of the right to free speech itself. So suppose there is a right
to liberty. Not plural rights to plural liberties, but simply a right to
liberty. We need not delve into the details of what activities such a
right would include, nor of what would follow from an activity being
protected by the right, but at least one plausible version of the right
to liberty would be in the neighborhood of the right specified and
defended in Chapter One of John Stuart Mills On Liberty the right
(or liberty, in the Hohfeldian sense4) of all mentally competent adults
to engage in whatever non-harmful or harmful-only-to-themselves
activities they choose, without interference from the state.5 There is
of course a long history of commentary on and objections to the
existence, possibility, and desirability of such a right, starting with
James Fitzjames Stephens roughly contemporaneous response,6 and
continuing to this day.7 But assessing the soundness of those
objections is peripheral to my basic point here, so I will leave them
aside. Instead, I will assume that we can at least make some sense of
the On Liberty Chapter One right to engage in any action that does
not produce assignable harms to individuals other than the actor.
So if there is a right to liberty, which we can label the right to /,
then the right to / will designate and encompass a right to engage in
any member of a class of activities, with / being the label for the
class. But the class /, being a class, will include /1, /2, /3,,/n,
where each member of the series is a particular liberty-embodying
act. Each of those liberty-embodying acts, however, will also have
some property in addition to the property of being libertyembodying. Some of the acts will involve (or be), say, walking, or
brushing ones teeth, or driving a car, or raising ones arm, or playing
a game, or smoking marijuana, or engaging in a non-coercive sexual
4
Immunity from governmental restriction is commonly described as a liberty from a Hohfeldian
perspective, but the term that Hohfeld actually used was privilege. Wesley Newcomb Hohfeld,
Fundamental Legal Conceptions as Applied in Judicial Reasoning, Walter Wheeler Cook, ed. (New Haven,
CT: Yale University Press, 1919).
5
John Stuart Mill, On Liberty, D. Spitz, ed. (New York: W.W. Norton, 1975) (1859). Mills position
was dubbed the harm principle in Joel Feinberg, Social Philosophy (Englewood Cliffs, NJ: Prentice-Hall,
1975), p. 25.
6
James Fitzjames Stephen, Liberty, Equality, Fraternity (London: H. Holt & Co., 1873).
7
The leading analyses, at once both sympathetic and critical, are Alan Ryan, J.S. Mill (London:
Routledge & Kegan Paul, 1974); John Skorupski, John Stuart Mill (London: Routledge, Chapman & Hall,
1989), C.L. Ten, Mill on Liberty (Oxford: Oxford University Press, 1980). And see also, more recently but
less sympathetically, Sarah Conly, Against Autonomy: Justifying Coercive Paternalism (Princeton, NJ:
Princeton University Press, 2012).

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act, or something else. And, importantly, some will be or involve

speaking. The right to / will therefore also, and inevitably even if
not strictly logically, include some number of speech-/s as well as
some number of non-speech /s. And if this is so, then the right to
liberty will encompass the right to engage in a multiplicity of acts of
speech (or communication, or expression, or whatever8), and will
include the right to engage in any act of speech that is also an
exercise of liberty in the relevant sense.
So if there is such a right to liberty, whether in moral or political
or constitutional or legal reality, or as the necessary presupposition
of someone who talks about such a right,9 what would it mean to
say that there is a right to freedom of speech? If speech is assumed to
be a self-regarding activity in the relevant sense, as a surprisingly
large number of theorists and non-theorists appear to assume,10 then
saying that there is a right to free speech against the background of a
general right to engage in self-regarding activities is like saying that
8
It is not plausible to understand the word speech in freedom of speech as anything other than
technical language. Freedom of speech, or freedom of expression, or freedom of communication, or any
other variation on the same idea, does not encompass the freedom to make a contract with words, the
freedom to write a will with words, the freedom to fix prices with competitors with words, the freedom
to place an illegal bet with words, or the freedom to say I will at a marriage ceremony. See Frederick
Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982); Frederick
Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, Harvard Law Review, vol. 117 (2004), pp. 17651809. And once we understand that the specification of what the freedom of speech is a freedom of cannot sensibly be understood by reference to the
ordinary language meaning of any of the common specifications, not a great deal turns on which label
we choose to employ.
9
That is, to claim a right to liberty, or to criticize an alleged infringement of a right to liberty,
presupposes the claimants or critics acceptance of such a right, in a manner prominently theorized by
H.L.A. Hart in terms of the internal point of view. H.L.A. Hart, The Concept of Law (Penelope A.
Bulloch, Joseph Raz, and Leslie Green, eds., Oxford: Clarendon Press, 3rd ed., 2012).
10
Among non-theorists, consider the traditional Sticks and stones will break my bones, but names
will never hurt me playground rejoinder to a verbal taunt, as well as the seemingly ubiquitous claim
that restriction-oriented concerns with words and pictures are misplaced because words and images are
different from and less consequential than real actions. And among theorists, we see Michael Bayles
arguing that the exercise of freedom of speech is less likely to interfere with the exercise of other
liberties than is, say, liberty of action. Michael Bayles, Mid-Level Principles and Justification, in
NOMOS XXVIII: Justification, J. Roland Pennock and John W. Chapman, eds. (New York: New York
University Press, 1986), pp. 4967, at p. 54. Similarly, Martin Redish claims that it is almost certainly
true in the overwhelming majority of cases that speech is less immediately dangerous than conduct.
Martin H. Redish, Freedom of Expression: A Critical Analysis (Charlottesville, VA: Michie, 1984), p. 5. Most
prominently, Ronald Dworkin, especially in Taking Rights Seriously (London: Duckworth, 1977), pp.
200203, uses freedom of speech as an exemplar of a broadly-conceived personal liberty based on a right
to equal concern and respect. Slightly more complex is Judith Thomsons distinction between physical
and belief-mediated distresses, a distinction that appears to place the distresses caused by the speech of
another in a morally different category from the distresses caused by physical contact. Judith Jarvis
Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press), pp. 249261. For my critique
of Thomsons distinction, as well as a broader analysis of speech and harm, see Frederick Schauer, The
Phenomenology of Speech and Harm, Ethics, vol. 103 (1993), pp. 635653.

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there is a right to brush ones teeth, a right to play games, or a right

to take an evening stroll. And this is the same as saying that there is a
right to free speech on Tuesdays, at least against the background of
there being a right to free speech at all times. Thus, to highlight a
subset of a larger set without a special justification for doing so
seems ordinarily, questions of pure political strategy aside,11 both
misleading and pointless.
V

The special justification necessary to support a specific reference to or

distinct recognition of a right to freedom of speech might be either a
difference in kind or a difference in degree. Or both. It could be that
speech is qualitatively different from other forms of liberty, in which
case it would no longer be nonsensical to talk about free speech even
though freedom to speak might also be subsumed under a larger right
to liberty. If speech were in some relevant sense different, just as (for
some people) Saturday or Sunday or possibly even Tuesday might be
relevantly different from the other days of the week, then it might,
depending on the context, make sense not only to speak distinctly
about a right to free speech, but also to carve out a distinct right for
that which might also be subsumed under the larger right.
Speech might also be quantitatively different, as would be the
case, for example, were self-regarding instances of speech a greater
proportion of the category speech than self-regarding instances of
non-speech action were of the category non-speech-action. Moreover, the differences between speech and non-speech-action, whether of kind or of degree, might be differences of regulatory impact
as opposed to differences in the nature of the regulated act. If the
state were more inclined to regulate speech than it were to regulate
non-speech actions having the same or equivalent consequences, it
might then be necessary to create or recognize a right to free speech
merely as an over-protective shield against expected over-regulation.12 Indeed, the over-regulation might be quantitative more
11
The circumstances under which references to free speech are instrumentally justified as a political
strategy, philosophical soundness aside, is a question to which I shall return in Section XII of this paper.
12
Similarly, someone who talks about a right to free speech under assumed conditions of general
liberty might wish simply to emphasize that speech is one of the activities encompassed by the liberty,
but the emphasis will be sensible only if there is some reason to believe the emphasis is needed, for
example that this component of liberty will be under-appreciated or under-recognized compared to
other components of a general liberty.

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instances of regulation or qualitative greater penalties, for

example, again holding constant the value of the regulated act. Still,
unless there existed something qualitatively or quantitatively distinct
about the regulation of speech, talking about a right to free speech
against the background of a presupposed right to general liberty
would be an error.13 If self-regarding speech were an entirely fungible subclass of the class of self-regarding activities, and if the
restriction of such speech were an entirely fungible subclass of the
class of liberty-restricting activities, then referring to a right to free
speech against a background of acceptance of a right to liberty would
make no more sense than talking about a right to free speech on
Tuesdays against a background of a right to free speech. And thus
from the perspective we might label as the conversational implicature of rights discourse, a subset of the larger pragmatics of rights
discourse, we can say that talking about a right to free speech presupposes a difference between speech and the other actions that
might be encompassed by a larger and broader right. In Searles
language, saying that there is a right to free speech presupposes
something remarkable about speech.
VI

The tone of the previous section notwithstanding, my claim here is

not principally a claim about the language of rights that is, it is not
primarily about how we talk about rights. Rather, it is a claim about
the structure of rights and about the substance of what it is to
recognize a right. To recognize a right, and thus to grant it some
degree of political and/or legal protection, presupposes a reason for
doing so that distinguishes the recognized right from the larger
recognized right which encompasses the smaller recognized right
under discussion.

13
See Douglas Husak, What Is So Special About Free Speech?, Law & Philosophy, vol. 4 (1985), pp.
115. As Mary Anne Case suggested to me in conversation, the requirement of specialness can also be
satisfied by a unique intersection of factors that are not unique themselves. And thus I agree with Kent
Greenawalt, who argues that [r]easons of more general applicability may have special strength as to
speech, and various reasons in combination may apply to speech in a way that is not true of other
activities[, but] should the only good reason for liberty of speech apply in the same strength to a much
broader range of activities, any claim for a distinctive principle of free speech would be undercut. Kent
Greenawalt, Free Speech Justifications, Columbia Law Review, vol. 89 (1989), pp. 119155, at pp. 124
125.

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It is true that as a matter of non-ideal theory, one reason for

creating or recognizing the smaller or narrower right could be a state
of affairs in which there existed non-recognition of the larger or
broader right. A libertarian might, for example, wish for a society
modeled after Mills Chapter One, but, recognizing the (mistaken, to
her) non-existence of such a society, would accept a right to free
speech simply as a matter of partial compliance.14
Such partial compliance need not presuppose any independently
defensible, or even sensible, differentiation. Consider the case of
capital punishment. Someone who is opposed to all capital punishment but who lives in a society that accepts capital punishment might
have good reason to support the elimination of capital punishment not
only in cases (youth, mental impairment, etc.) that are in some way
genuinely different from other cases of capital punishment, but also
even for rationally indistinguishable subsets of the larger set. If there
would be less capital punishment than otherwise in a society in which
people born on the 10th, 20th, and 30th day of any month were
immune from capital punishment, or if capital punishment was not
imposed on Capricorns and Leos even while it is imposed on those
born under other astrological signs, the opponent of capital punishment would have reason, ceteris paribus, to accept such a program even
while she recognizes its ultimately pointless or arbitrary basis.15
But if we put aside the case of consequential differentiation of the
more deeply undifferentiated,16 what emerges is the claim that actual
recognition of a distinct right presupposes some form of differentiation, and not merely the identification of the right as a component of a
larger right. When there exists actual legal or political recognition of a
right to /, then we might have the setting for what we can call, in a
Gricean adaptation, political implicature or legal implicature. That is,
14
See Larry Alexander, Is There a Right to Freedom of Expression? (New York: Cambridge University
Press, 2005), especially pp. 192193. And compare Susan J. Brison, Larry Alexanders Free Speech
Scepticism: An Antidote to First Amendment Fundamentalism?, APA Newsletter on Philosophy and Law,
vol. 12(1) (2012), pp. 710.
15
There is an interesting question lurking here about the role that consequentialist assessments play
even within non-consequentialist moral frameworks. Non-consequentialist objectors to torture, for
example, should, we might think, support programs whose consequences would decrease the instances
of torture. Thus, although the non-consequentialist might identify wrongs on a non-consequentialist
basis, and might also view the existence of such wrongs as a reason for opposing their imposition
regardless of consequences, she might also have consequentialist reasons for choosing strategies that
will produce less rather than more of what she thinks is non-consequentially wrong.
16
See Frederick Schauer, On the Utility of Religious Toleration, Criminal Law and Philosophy, vol. 8
(2014), DOI: 10.1007/s11572-014-9317-2.

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recognizing or creating a legal or political right to / presupposes a

reason for doing so, and if /ing is already protected, and to the same
extent, by some broader right that includes but is not limited to /,
then recognizing or creating a right to / is superfluous. And if this is
so, then, conversely, recognizing or creating a right to / can be
understood as presupposing the non-existence of a broader right that
subsumes the right to /. Indeed, one reason for taking seriously the
way in which free speech might be other than simply a component of a
right to liberty simpliciter is that many modern societies do not accept
the Mill Chapter One right. If, again as a matter of non-ideal theory,
free speech is understood principally as a component of a larger right
that happens to be rejected, then the rejection is, pro tanto, a rejection
of free speech as well. But if free speech is different from or more than
simply an exercise of liberty, then the arguments supporting a right to
free speech will survive the rejection of the general right to liberty.
VII

My claim about the presupposed distinctiveness of speech (or its

restriction) as a necessary condition for recognizing a distinct right
has particular importance in terms of free speech justifications different from and possibly narrower than the kind of general liberty
right in Chapter One of On Liberty. Consider, for example, the
widely-held view that free speech is justified in terms of, and
grounded by, speaker-autonomy.17 It is true that if there is a
17
See, for example, C. Edwin Baker, Autonomy and Free Speech, Constitutional Commentary, vol.
27 (2011), pp. 251282; C. Edwin Baker, Scope of the First Amendment Freedom of Speech, UCLA Law
Review, vol. 25 (1978), pp. 964990; Diana T. Meyers, Rights in Collision: A Non-Punitive Compensatory Remedy for Abusive Speech, Law and Philosophy, vol. 14 (1995), pp. 203243; Thomas Nagel,
Personal Rights and Public Space, Philosophy and Public Affairs, vol. 24 (1995), pp. 83107; David A.J.
Richards, Toleration and Free Speech, Philosophy and Public Affairs, vol. 17 (1988), pp. 323336; David
A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment,
University of Pennsylvania Law Review, vol. 123 (1974), pp. 4591; Susan H. Williams, Free Speech and
Autonomy: Thinkers, Storytellers, and a Systemic Approach to Speech, Constitutional Commentary, vol.
27 (2011), pp. 399422. The foregoing list excludes accounts focused primarily on hearer-autonomy or
audience-autonomy, as with, most prominently, Thomas Scanlon, A Theory of Freedom of Expression, Philosophy and Public Affairs, vol. 1 (1972), pp. 204226, Harry Wellington, On Freedom of
Expression, Yale Law Journal, vol. 88 (1979), pp. 11051142 (and see also T.M. Scanlon, Comment on
Bakers Autonomy and Free Speech, Constitutional Commentary, vol. 27 (2011), pp. 319325, at pp. 323
324, including audience-interests within a larger array of autonomy interests), but much of what I say
here about speaker-autonomy approaches to freedom of speech applies, mutatis mutandis, to hearerautonomy accounts as well. The full range of autonomy accounts is criticized, in, for example, Susan J.
Brison, The Autonomy Defense of Free Speech, Ethics, vol. 108 (1998), pp. 312339. And for the view
that the word autonomy may be misleading insofar as it groups a rather divergent collection of
interests, values, and rights, see T.M. Scanlon, Why Not Base Free Speech on Autonomy or
Democracy?, Virginia Law Review, vol. 97 (2011), pp. 541548.

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meaningful idea of autonomy, then some instances of speaking or

writing or communicating are instances of that idea. But so too are
other acts. I exercise my autonomy when I decide what to say, and in
what style, and to whom, and where, and when, but I also exercise
my autonomy when I make choices about sexual activity, employment, residence, dress, hairstyle, and much else. If the right to
autonomy includes all of these choices or decisions or forms of life,
then carving out speech from among them, without a specific reason
for doing so, is once again akin to carving out free speech on
Tuesdays.
The same argument applies to numerous other largely individualist justifications for a right to freedom of speech.18 Ronald Dworkin, for example, understands freedom of speech as exemplifying the
right to equal concern and respect. He may or may not be right in
this regard, but if free speech is merely a fungible exemplar of a
larger right, as Dworkin seemed to be suggesting in his earlier
writings on the subject,19 then he can be interpreted as implicitly
rejecting the idea of a distinct right of free speech. But if this is an
inapt characterization, and if Dworkin does not believe that free
speech is fungible with other instantiations of the right to equal
concern and respect, then he would need an argument explaining
why free speech is different, or special, and that is an argument he
does not appear to make.
Similarly, Joseph Raz, who does recognize the problem of special
justification,20 understands freedom of expression as a manifestation
of the right to public validation of ones way of life, or personal
identity. Maybe so, but so too are a vast number of other public
manifestations or expressions of ones personal identity, and the
same problem that plagues Dworkins account plagues Razs as well.
18
I put aside, at least until the discussion in Section X, various arguments that are purely socially
consequentialist (or what Dworkin would call policy arguments, see Ronald Dworkin, The Farber
Case: Reporters and Informers, in A Matter of Principle (Cambridge, MA: Harvard University Press,
1986), pp. 373380), including the consequentialist argument that a regime of free speech will enable a
society to increase its stock of aggregate knowledge to a greater extent than would be the case were
there no such right.
19
There is a difference in emphasis and maybe even in substance between Dworkins treatment of
freedom of speech in Taking Rights Seriously, op. cit. note 9, and the discussion in, for example, Ronald
Dworkin, Women and Pornography, New York Review of Books (October 21, 1993), pp. 3642; Ronald
Dworkin, The Coming Battles over Free Speech, New York Review of Books (June 11, 1992), pp. 5564.
20
See Joseph Raz, Free Expression and Personal Identification, Oxford Journal of Legal Studies, vol.
11 (1991), pp. 303324, especially at p. 304, where Raz describes it as a puzzle that freedom to express
oneself publicly enjoys special protection compared to other interests that may be as important to
peoples interests.

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For both of them, and for some of those who understand free speech
as an extension of freedom of thought,21 and for many others, what
they say about free speech could just as easily and just as accurately
be said about free speech on Tuesdays, or free speech in Cleveland.
The most explicit denial of the necessity of specialness comes
from Seana Shiffrin, who, in developing a thinker-based (or freedom
of thought) account of freedom of speech, rejects the view that a
successful account of freedom of speech must justify its special status.22 Although she believes that free speech is special in my sense,
arguing that it has a special importance in how we develop our
thoughts in relation to the thoughts of others, she believes as well
that this feature of speech is not a necessary condition for the success
of her account, arguing that an autonomy theory of free speech
may succeed at [the] justificatory project while articulating values
that cast a broader net encompassing other forms of autonomous
activity.23 But as I will argue in the following section, succeeding in
the justificatory project justifying an existing and presumably
entrenched (whether in positive law or political practice or public
discourse) specification of a right is different from succeeding an
explaining what justifies the specification in the first instance. Shiffrin
is right that specialness is unnecessary for the justification of the
antecedently specified, but appears, at least to me, mistaken in
believing that the same arguments would be sufficient to justify the
specification.24

21
See, for example, Charles Fried, The New First Amendment Jurisprudence: A Threat to Liberty,
in Geoffrey R. Stone, Richard A. Epstein, and Cass R. Sunstein, eds., The Bill of Rights in the Modern State
(Chicago: University of Chicago Press, 1992), pp. 225254.
22
Seana Valentine Shiffrin, A Thinker-Based Approach to Freedom of Speech, Constitutional
Commentary, vol. 27 (2011), pp. 283316.
23
Ibid., p. 288.
24
Indeed, given Shiffrins insistence that she is engaged in ideal theory and not justification of
existing practices, ibid., p. 284; Seana Valentine Shiffrin, Methodology in Free Speech Theory, Virginia
Law Review, vol. 97 (2011), pp. 549558, at p. 550, it is not clear that she can avoid explaining why we
have a specific right to free speech in the first place. But insofar as she does say that she start[s] with the
First Amendment, Seana Valentine Shiffrin, Reply to Critics, Constitutional Commentary, vol. 27 (2011),
pp. 417438, at p. 417, it may be that her conception of ideal theory is different from mine, and that
there is a difference between an ideal of the First Amendment and an ideal theory that does not take any
existing specification of rights as a given. And see T.M. Scanlon, Comment on Shiffrins Thinker-Based
Approach to Freedom of Speech, Constitutional Commentary, vol. 27 (2011), pp. 327335, at p. 335,
wondering whether Shiffrin is offering an account of freedom of speech or instead just an account of
freedom of thought.

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VIII

Thus, one objection to the argument up to this point is that I seem

to have collapsed the distinction between offering an instantiation
and searching for a justification. There is now an active industry in
supplying justifications for a right of free speech, and so it is
worthwhile examining just what a theorist is doing when she
engages in that enterprise, and how her theorizing about the theoretical underpinnings of a right to free speech relates to what I have
argued thus far.
Suppose that we are not starting with the higher-level value
autonomy, say and then seeking to inquire into what might be
subsumed under it, but are instead starting with an existing legal,
constitutional, or political right and seeking to locate its deeper
justifications. So if some society has, as a matter of political and legal
and constitutional fact, a right to free speech, we might be interested
in exploring just what justifies that right. This interest may perhaps
be grounded in pure intellectual interest or perhaps instead on account of the fact that knowing the rights justification its purpose25
will enable us better to apply it to actual cases, especially ones
arguably at the periphery of the right. Whether a right to free speech
includes the speech of non-press corporations,26 for example, may
depend on whether the right is justified in terms of its social epistemic value (the so-called marketplace of ideas), or instead because
of a distrust of government, or because of listener autonomy, or
because of speaker autonomy, or for some other reason. And
without getting too far into the weeds of this actual question, we
might suspect that a right to free speech based on speaker autonomy,
or on (as with Shiffrin) the flourishing of the thinking processes of
both speakers and hearers, would be less congenial to corporate
speech than would any of the other justifications just mentioned.
If a right to free speech is justified on the grounds that speech is
autonomy-producing (or enhancing, or embodying), is this conclusion, when offered as a response to an inquiry into free speechs
justifications, still subject to the Free Speech on Tuesdays objection?
25

Which is emphatically not the same as the motives or mental states of those who have created the

right.
26
As in, most prominently and most controversially, Citizens United v. Federal Election Commission,
558 U.S. 310 (2010). And see also First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), and, most
recently, McCutcheon v. Federal Election Commission, 134 S. Ct. 1434 (2014).

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131

Not necessarily. Autonomy as the sole or principal justification for

free speech might be compatible with speech being more expressive
of autonomy, or more frequently expressive of autonomy, or more
under threat than other expressions of autonomy. Or it might be the
case that there actually is a right to autonomy, and thus that any
violation of autonomy is a violation of that right. Under such circumstances an error would be committed by those who supposed
that there was a specific right to free speech, or even by those who
created or endorsed such a right against a background of a right to
autonomy, but not by those who, when confronted with the fact of
existing legal or political protection of a right to free speech, saw its
justification as grounded in autonomy.
Indeed, the difference between an approach that begins with the
more general right and searches for what it subsumes and one that
instead searches for the justification of an existing and recognized
right is even more pronounced when the existing right is legally or
constitutionally entrenched. When a right is so entrenched, the very
legal status or other entrenchment of the right may make it
impossible to argue that the right is unduly or arbitrarily specific.27
That may be the case (although it might not have been at some time
in the past), but the very fact of legal entrenchment brings as a
consequence some degree of acceptance of possibly arbitrary distinctions Free Speech on Tuesdays that is not present when we
engage in an exercise of pure political theory. Of course others may
believe that legally instantiated rights are merely transparent signposts to deeper and broader rights,28 in which case the specificallynamed right drops out of the picture. But it is curious that some who
hold something in the vicinity of this view Ronald Dworkin and
David Richards, for example remain wedded to the specific
instantiation in ways that are arguably in tension with the implications of their larger theories. But now we have perhaps digressed too
27
See Frederick Schauer, Must Speech Be Special? Northwestern University Law Review, vol. 78
(1984), pp. 12841306. For an exploration of the same problem in the context of constitutionally
entrenched protections of freedom of religion, see Micah Schwartzman, What If Religion is Not
Special?, University of Chicago Law Review, vol. 79 (2012), pp. 13591427.
28
See especially Richards, op. cit. note 13, and the underlying theme of much of Ronald Dworkins
writings. If specifically recognized rights are the building blocks for developing a theory that makes
sense of most of the specifically recognized rights, an important question remains as to the status of the
specific rights. Are they to be cast aside, like Wittgensteins ladder, after the theory that explains them is
constructed, or do they retain independent force apart from the force of the theory whose construction
they facilitated?

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far into legal theory and the theory of constitutional interpretation.

Consequently, it is perhaps best simply at this point simply to note
that the task of seeking the background justification for a textually or
otherwise entrenched right is a different enterprise than one that is
freed from the shackles of legal, constitutional, or political
entrenchment.
IX

Once we understand specific rights, such as the right to free speech,

as potentially being instantiations of larger and broader rights, we
can then explain the specific rights in rule-like terms. That is, we can
see rights as rules. But understanding rights as rules does not
undercut the basic point of the Free Speech on Tuesdays objection.
When the rule-utilitarian claims that, say, a rule against lying will
maximize utility, she is not saying that every instance of lying is
utility-decreasing, but merely that a rule against all lying will produce more utility than the absence of such a rule. But the reason the
rule-utilitarian advocates rules about some activities such as lying
and not about others such as torturing babies and puppies is that
the rule-utilitarian expects that people will often miscalculate the
negative utility of lying in a way that they will not for torturing
babies and puppies.29 And thus the act of prescribing a rule about
one subject and not another reflects the belief that something about
the subject of the rule justifies its special treatment.
Consider, for example, H.L.A. Harts old jurisprudential chestnut,
the rule prohibiting vehicles in the park.30 Such a rule might be
justified by a background rationale of limiting noise, for example.
Other justifications (safety, say, or tranquility) might be possible, but
29
Implicit in the statement in the text is the view that the most sensible form of rule-utilitarianism
(or rule-consequentialism), and perhaps the only sensible form of rule-utilitarianism, is one that sees the
rule-maker and the rule-subject as separate decision-makers (including the possibility that the same
human being is the rule-maker at Time 1 and the rule-subject at Time 2). See R.M. Hare, Moral
Thinking: Its Levels, Methods and Point (Oxford: Oxford University Press, 1982); Brad Hooker, Rule
Consequentialism, Stanford Encyclopedia of Philosophy, www.plato.stanford/entries/consequentialismrule/(2008); Conrad Johnson, Moral Legislation (New York: Cambridge University Press, 1991); Frederick
Schauer, Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life
(Oxford: Clarendon Press, 1991).
30
H.L.A. Hart, Positivism and the Separation of Law and Morals, Harvard Law Review, vol. 71
(1958), pp. 593629. The example reappears in somewhat briefer form in H.L.A. Hart, The Concept of
Law (Oxford: Oxford University Press, 3rd ed., Penelope A. Bulloch, Joseph Raz, and Leslie Green, eds.,
2012), pp. 128129. An exhaustive (or perhaps exhausting) analysis is Frederick Schauer, A Critical
Guide to Vehicles in the Park, New York University Law Review, vol. 83 (2008), pp. 11091134.

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133

let us stick to noise-limitation. But if noise-limitation is the justification, then there still needs to be a reason for prohibiting vehicles
but not musical instruments, crying babies, barking dogs, portable
radios, political rallies, and cheerleading practice. Such a justification
might be offered in terms of the frequency or salience of the particular noise-producing agent, thus explaining a specific prohibition
on vehicles but not on musical instruments. Or it might take the
form of the absence of a countervailing benefit or need, thus distinguishing vehicles from, say, crying babies and political rallies. Or it
might be that some noise-producing agents are noisier than others,
producing a distinction between vehicles and barking dogs (perhaps).
But if the prohibition on vehicles can be justified as a particular selfstanding rule in light of its background justification, there needs to
be some basis for distinguishing the subject of the rule from the
other instantiations of the justification that are not covered by the
rule.31
Or consider, more realistically, the typical highway speed limit.
Presumably the speed limit the rule is designed to promote
safety. But there are many forms of driving behavior other than
excess speed which are threatening to safety. Then why single out
speed? Again, the answer cannot be simply that excess speed is a
member of the larger class of safety-impairing driving behaviors.32
That account is insufficient to justify a rule against speeding when
there is no rule prohibiting other safety-threatening driving habits,
such as eating or playing a musical instrument while driving. The
31
At times, of course, the background justification will be vague or otherwise indeterminate.
Anything producing excess noise is less determinate and thus more susceptible to varying interpretations (and possibly abuses of enforcer discretion) than a specific prohibition on vehicles, assuming that
there is far more shared agreement on what is a vehicle than on what produces excess noise. But if
reducing uncertainty in understanding and enforcement is the goal, the solution would be a full (or as
full as foreseeable) list of noise-producing agents, including the aforesaid barking dogs, musical
instruments, portable radios, amplifying devices, crying babies, and so on. To include only vehicles on
the list would again appear to require some special justification for specifying vehicles but not any of the
various other noise-producing agents.
32
Indeed, it is just this form of argument from arbitrary under-inclusion that formed the basis of
many of the objections to a prohibition on cellphone use while driving, the argument being that it was
arbitrary to single out cellphone use when the same problems of inattention in the same quantity were
often caused by eating while driving, tuning the radio, and engaging in conversation with passengers.
And on arbitrary under-inclusion as a constitutional problem in the particular context of alleged
justifications for restricting otherwise constitutionally-protected speech, see Elena Kagan, Private
Speech, Public Purpose: The Role of Government Motive in First Amendment Analysis, University of
Chicago Law Review, vol. 63 (1996), pp. 413517; Elena Kagan, The Changing Faces of First Amendment
Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, The
Supreme Court Review, vol. 1992 (1993), pp. 2970.

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speeding rule might be justified, against the background of a broader

safety principle or safety rule or safety justification, on the assumption that speeding is a quantitatively larger cause of accidents, or that
speeding is easier to detect and prosecute than other safety-impairing
driving behaviors, or that speeding produces injuries or accidents of
greater severity, or something of that order, but for the speeding rule
to be rationally justified there must at least be something that differentiates speeding from other instantiations of the broader principle or justification.33
Consequently, even if we see a right to free speech as an instantiation of a broader principle of autonomy, or liberty, or selfexpression, or any principle of that variety, the basic argument of this
paper still holds. To isolate one or several instantiations of a broader
principle into the form of a right-rule presupposes something distinguishable, whether quantitatively or qualitatively, about the topic of
the right-rule, and without some form of distinction picking out one
aspect of the larger principle is genuinely arbitrary and thus irrational.
X

I have been focusing on autonomy and related individualist justifications for a right to free speech in part because this class of justifications has been particularly prominent in recent years, and in part
because the argument I offer here is particularly apt with respect to
the relationship between a free speech principle, or right, and a
principle of general liberty. Because it is so common, albeit mistaken
in my view, to understand speech as relevantly harmless or relevantly self-regarding,34 it is tempting for those who have such a
(mistaken) view to imagine that free speech is but an instantiation of
the larger right to engage in harmless or self-regarding activities. For
those who have this view, Mills Chapter Two the Liberty of
Thought and Discussion exemplifies and specifies Chapter One.
33

It is possible that in some contexts, which might include various forms of unsafe driving behavior,
a one step at a time approach, especially under conditions of limited resources, might justify singling
out one among multiple fungible instantiations of a background principle for initial attention. It may be
that this approach falls under the category of strategic considerations, considerations I intend largely to
bracket in this paper. But it also seems unlikely that one step at a time would explain singling out one
right among many for special protection, at least without some particular reason to choose that right,
which is compatible and not inconsistent with the basic point of this paper.
34
See Frederick Schauer, The Phenomenology of Speech and Harm, Ethics, vol. 103 (1993), pp.
635653.

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135

The contrary view would see much of human communication as

other-regarding after all, we typically speak in order to affect others
and Mills Chapter Two, if not exactly an exception to Chapter
One, would at least be a self-standing argument, independent of
Chapter One, for why a certain class of other-regarding activities
ought to be protected by a liberty, not because they are harmless,
but despite the harm they may cause.35 Of course most speech is not
harmful, but most non-speech actions are not harmful as well, and
thus Chapter Two might be understood as an attempt to ground a
right to engage in even those harmful speech acts that would not be
protected by a principle of general liberty. And thus my argument
here might be understood as an effort to support exactly this
understanding of the nature of a free speech right. A free speech
right so understood may well be ultimately unjustified, and indeed I
have some tentative sympathy for that conclusion, but that, too,
must be left for another day.
Yet although the foregoing paragraphs explain my emphasis in this
paper on autonomy and other individualist justifications for a right to
free speech, the same basic argument does apply to other and nonindividualist free speech justifications. And among the most prominent of the non-individualist justifications are those focused on a regime of free speech as facilitating (or, for Mill, almost a necessary
condition of) the search for truth or the advance of knowledge the
so-called marketplace of ideas arguments36 and the argument that
freedom of speech, or at least freedom of political speech broadly, is an
essential component of democratic governance.37 But although the
substantive framework is different for these and related arguments
35
See Frederick Schauer, On the Relation Between Chapters One and Two of John Stuart Mills On
Liberty, Capital University Law Review, vol. 39 (2011), pp. 571592.
36
The argument goes back at least as far as John Miltons Areopagitica, and can be found in one form
or another in the writings of John Locke, Thomas Jefferson, John Stuart Mill, Walter Bagehot, and
Oliver Wendell Holmes. In part because the argument depends on contested (and dubious) empirical
claims about the explanatory power of the truth of a proposition in determining which propositions will
be accepted and which not, it has not fared well in the literature in recent years. See, for example, Alvin
I. Goldman and James C. Cox, Speech, Truth, and the Free Market for Ideas, Legal Theory, vol. 2
(1996), pp. 132. See also Edward L. Glaeser and Cass R. Sunstein, Does More Speech Correct
Falsehoods, Journal of Legal Studies, vol. 43 (forthcoming 2014). More sympathetic recent accounts
include William P. Marshall, In Defense of the Search for Truth as a First Amendment Justification,
Georgia Law Review, vol. 30 (1995), pp. 139, and Christopher T. Wonnell, Truth and the Marketplace of
Ideas, University of California Davis Law Review, vol. 19 (1986), pp. 669728.
37
See, for example, Alexander Meiklejohn, Free Speech and Its Relation to Self-Governance (New York:
Harper & Brothers, 1948); Robert C. Post, Constitutional Domains: Democracy, Community, Management
(Cambridge, MA: Harvard University Press, 1995); Cass R. Sunstein, Democracy and the Problem of Free
Speech (New York: Free Press, 1993).

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than it is for more individualist ones, the same basic point still holds.
Thus, if freedom of speech is simply one component of a broader
principle of epistemic advance, then picking out free speech and not
any of the other components of that goal remains subject to the same
objection. And if instead free speech is understood as one of the
essential aspects of democratic governance, then protecting it by a
legal, constitutional, or political right while not simply protecting or
guaranteeing democracy once again requires an argument for the
distinctiveness of speech or for the distinctiveness of its regulation.38
Of course abstract rights do need some specification. If there were
simply a right to democracy, for example, its components would
need to be specified, and freedom of speech would be one of the
specified components. But a comprehensive specification of what
some abstractly specified right actually includes is still very different
from picking out one of those specified components for special
attention. Thus the argument I offer here is not an argument against
listing the constituent elements of a broadly-understood right. It is an
argument against picking out one item from the list for special
solicitude without an accompanying special justification for doing so.
XI

As noted above, the argument thus far has intentionally bracketed

questions of political strategy. There is little doubt that some instantiations of general rights may attract more and more influential support than others, and free speech is likely one of them. Because of the
interest and interests of the press, for example, arguments for free
speech may have a resonance and a degree of influential political and
public support that arguments for a more general liberty do not. And
because of the historical provenance of the right to free speech, a
provenance whose earlier rationale may fit poorly at least with
autonomy-based accounts, the historical provenance alone may often
make it a good strategy either to recharacterize other rights in free
speech terms,39 or to make arguments from a particular member of
38
And thus if none of these arguments are successful, there may be no justification for a right to free
speech at all. See Larry Alexander, Is Freedom of Expression a Universal Right?, San Diego Law Review,
vol. 50 (2013), pp. 707720.
39
See Frederick Schauer, Free Speech Opportunism, in Lee C. Bollinger and Geoffrey R. Stone,
eds., Eternally Vigilant: Free Speech in the Modern Era (Chicago: University of Chicago Press, 2002), pp.
174197.

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137

the fungible class of instantiations of a larger right. The phenomenon

is of course real. But whether it is real is not the same as whether use of
it is philosophically defensible. And thus nothing I say here should be
understood as an attempt to say that it is strategically or instrumentally misguided to use the cultural salience, especially in the United
States, of free speech in order to achieve other and potentially larger
goals. Here, as elsewhere, the ends may indeed justify the means, and
there may be times in which it is defensible to use bad arguments to
achieve good ends. But when and why that is so would take us too
much beyond the far more modest scope of this paper, and thus must
be left for exploration by other people in other contexts and at other
times.
XII

This paper has been most explicitly about freedom of speech, but
nothing in its basic point need be so restricted. As should be obvious,
most of the arguments here, and maybe all of them, can be applied
to other rights. The act of right creation, just like a speech act, has its
associated pragmatics, and in some respects the pragmatics of the
two are similar. Just as an assertion presupposes certain background
understandings, so too does an act of rights creation or rights recognition presuppose certain other background understandings, and
nothing about the pragmatics of rights creation is or need be limited
to the right to free speech. The proposed Equal Rights Amendment,
for example, which would have created a textually explicit right to be
free from discrimination on grounds of sex, was proposed against a
background of an understanding of equal protection of the laws, at
least by the courts, that did not include sex discrimination as a
so-called suspect classification.40 Thus, the proposal was premised on
the non-existence in practice of an understanding of a more general
right that, if extant, would have made the Equal Rights Amendment
superfluous. The philosophical dimensions of the idea of equality, as
well as the doctrinal dimensions of the Equal Protection Clause of
the Fourteenth Amendment, are of course far more complicated
than this brief mention suggests, but the basic idea still holds that
to create or recognize a right presupposes the non-existence or non40

See the discussion in Frontiero v. Richardson, 411 U.S. 677 (1973).

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applicability or non-effectiveness of a more general right that would

have encompassed the urged particular right.
Similarly, the fact that the criminal procedure rights in the South
African constitution are spelled out in great detail,41 at least as
compared to many national constitutions and many international
human rights documents, tells us a great deal about the risks that
South Africa, in particular given its history, was concerned to guard
against. Although the rights delineated in great detail might have
been encompassed by a broader notion of due process or fair
criminal procedure, the history explains why relying on that broader
notion the general right was thought insufficient.
Of course the pragmatics of all acts of rights-creation or rightsrecognition will not be the same for all rights in all places at all times,
but the larger question of just why rights are created or recognized is
there just the same. When a particular right is created or recognized,
the act of creation of recognition can tell us something not only
about the particular right that is created or recognized, but also
about the scope or strength of some more general right that might
have made the creation of the particular right superfluous.
XIII

The analysis can be broadened even more, however, even if also

more speculatively. What are the pragmatics, and, more particularly,
the presuppositions of law-making? What are what we might call
the occasions of law? So consider the fact that in the not so distant
past, signs on the Massachusetts Turnpike, a high-speed limited
access highway, warned drivers that they were not to back up on the
highway if they missed their assigned exit. Similarly, at the University of Oxford, posted announcements at examination time remind
students that they are not to bring flour, eggs, and whipped cream
into the examination room. And prominently displayed at the BMI
Terminal at Londons Heathrow Airport are placards informing
passengers that it is against the law to assault airline employees.
What these signs share is the ability to produce an element of
surprise for most of us. Most of us, I hope, would never consider
backing up on a high speed turnpike, bringing flour and eggs into an
41
See especially Article 35(d), specifying the exact number of hours within which an arrested or
detailed person must be brought before a magistrate.

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139

examination, or assaulting a ticket agent. But obviously some people

would, for were it otherwise the signs would not be there. Indeed,
the signs tell us a great deal about the kinds of behavior that might
exist absent the warning or absent the legal prohibition. The very
fact that the signs exist provide useful information about the
behavioral proclivities of Massachusetts drivers, British airline passengers, and Oxford undergraduates,42 information that, as in these
examples, often comes as somewhat of a surprise.43
These examples are of signs telling people what the law is rather
than the law itself, but the same phenomenon exists with respect to
the law. The Third Amendment to the Constitution of the United
States prohibits quartering troops in private homes, a constitutional
prohibition existing nowhere else in the world. The prohibition exists, however, because it attempts to guard against what was, in
1791, perceived as a genuine possibility, a possibility informed by the
actual pre-Revolutionary British practice of just a few years earlier.
And the fact that there are in many jurisdictions specific prohibitions
on cannibalism suggests that some people might be inclined to engage in a practice that I and most others find unthinkable.
Thus, Searles point about no remark without remarkability appears to apply not only to assertion, and not only to rights-creation
and rights-recognition, but also to law-making generally. Searle is
best interpreted as arguing that the very fact of saying something
presupposes the genuine empirical possibility of its negation. If I
observe, correctly, that a colleague is sober today, that very remark
implies that he is not sober on some other days, a possibility that
might not have occurred to people had I not commented accurately
on his sobriety. And so too with law. As the examples above illustrate, legal prohibitions presuppose an inclination on the part of at
least some people to engage in the prohibited activities. Were there
no such inclination, there would be no need for laws, and that is why
the French Constitution does not prohibit the quartering of troops in
private homes, and why the examination regulations for Japanese
universities do not prohibit the throwing of food. Just as there is no
remark without remarkability, there is rarely law without the real
42
In this case the problem appears to be the tendency of Oxford undergraduates to throw food at
each other as soon as the examination is completed. Go figure.
43
Similarly, a scuba diving magazine (Sport Diver, April, 2010) contained an article entitled Dont
Pet the Sharks. It never would have occurred to me to do so, but plainly others are different.

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and antecedent possibility of the behavior that the law finds a need
to prohibit.
What started as an analysis of the theoretical justifications for a
right to free speech, therefore, has turned out to be suggestive about
law more generally. Obviously there are differences between
exploring the rationale for a right to free speech and the rationale for
any act of law-making, but it turns out to be important to recognize
that both rights-specification and law-making take place against a
background of what is already understood. If we start with what is
understood, we can see when it is important to add to what is
already understood. And when it is not. Both in the case of rightsspecification and in the case of law-making generally, we can infer
the background understandings that make such acts appropriate. To
return to the specific context of the right to free speech, therefore,
we can say that both at the level of theory and at the level of
concrete rights-creation, the right to free speech presupposes a
world whether ideal or actual in which the liberty of speaking is
not encompassed by an already existing right. To the extent that it is
so encompassed, a specific right to free speech is superfluous unless
it protects something not already otherwise protected. And it may be
that justifying the right to free speech, once we grasp its relation to
other rights, may be a more difficult task than is commonly assumed.
David and Mary Harrison Distinguished Professor of Law,
University of Virginia, Charlottesville, USA
E-mail: schauer@virginia.edu