Free Speech Constitutionalism

In his Article, Professor Tsesis examines the three dominant normative rationales for free speech in the United States. In turn, he critiques the theories that free speech furthers democratic institutions, that free speech furthers personal autonomy, and, lastly, that free speech advances knowledge by perpetuating a marketplace of ideas. While Professor Tsesis finds much to recommend in each theory, he also finds each lacking. He concludes that the present theories are too narrow to describe the range of concerns encompassed by the First Amendment’s Free Speech Clause. As such, Tsesis proposes that First Amendment doctrine should reflect a general theory of constitutional law that protects individual liberty and the common good of open society. To test his proposal, Tsesis applies it to the thorny free speech problems of defamation, intentional infliction of emotional distress, and incitement laws to demonstrate its normative superiority. In the end, Tsesis concludes that such a theory of free speech would better allow government actors to advance the underlying purpose of the Constitution, namely developing and enforcing policies conducive to the public good that safeguard individual liberties on an equal basis.

The full text of this Article is available to download as a PDF.