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Defining free speech and why it's a counter-intuitive idea

A wooden coffee table with nine books about law and free speech
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Books on constitutional law and free speech written by Frederick Schauer

Freedom of speech is an essential part of our democracy. Frederick Schauer, law professor at the University of Virginia, explains free speech and why it is frequently misunderstood. 


How do you define free speech?

FREDERICK SCHAUER: The idea of free speech is that it is harder for governments to restrict certain forms of communication than it is for government to restrict other forms of conduct.

Most of the questions, at least as a matter of constitutional law, are questions about what governments can restrict.

Why is free speech misunderstood?

It turns out that the idea of free speech is a counter-intuitive idea. And once we understand that it's a counter-intuitive idea, we have a pretty good explanation of why there is so much misunderstanding.

Psychologists, in particular social and cognitive psychologists, have done a lot of research on something called motivated reasoning.

Motivated reasoning is believing that the world is the way you want the world to be.

That is your factual perceptions are motivated by your desires. And because free speech is such a counter-intuitive idea, people engage in motivated reasoning to think that the law and the general idea comports with what they think it ought to be. Even though it doesn't.

What is an example of motivated reasoning?

So it turns out, based on a 1989 Supreme Court case that burning the American flag is protected by the First Amendment. Most people not only believe that that's wrong as a normative matter, they believe that that's mistaken in terms of what free speech actually involves. That's just false. And has been false as a matter of constitutional doctrine since 1989.

Nevertheless, the resistance on the ground to that conclusion, in my view, is substantially influenced by people's motivated reasoning by what they think the law ought to be rather than what it is.

How is free speech enforced?

The enforcement of free speech is not largely enforcement by the government. Its enforcement in everyday discourse, its enforcement in how people react to speech and so on.

The enforcement of legal norms, the enforcement of constitutional norms depends to a very significant extent on public acceptance of them. If we want to avoid actions that violate the law in other respects, including violate the first, violating the First Amendment, then we need a fair amount of education of public officials, education of law enforcement officials, education of school teachers. That will do far more good than the formal devices of legal and constitutional enforcement.

Because by the time we get to the formal devices of legal and constitutional enforcement, it's too late.


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