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The law of defamation contemplates the clash of two fundamental rights: the right to freedom of expression, including freedom of the media, and the right to reputation. The rules of defamation law are designed to mediate between these two rights. The central proposition that this book makes is that defamation law needs to be reformed to balance the conflicting rights. This discussion flows from a theoretical analysis of the rights in issue; the value underlying the right to reputation that has most resonance is human dignity, while the value that is most apposite to freedom of expression in this context is the argument that free speech is integral to democracy. The argument from democracy emphasizes that speech on matters of public interest should receive greater protection than private speech. This book argues that fundamental rules of defamation law need to be reformed to take into account the dual importance of public interest speech on the one hand, and the right to human dignity on the other. In particular, the presumptions that defamatory allegations are false and have caused damage, the principle of strict liability to primary publishers and negligence liability to secondary publishers, and the availability of punitive damages, should not survive constitutional scrutiny. The quantum of damages and costs rules, and the remedies available in defamation cases, should also be reformed to reflect the importance of dignity to the claimant, and the free speech interest of the public in receiving accurate information on matters of public interest.
When we discuss constitutional law, we usually focus on the constitutional rules that apply to what the government does. Far less clear are the constitutional rules that apply to what the government says. When does the speech of this unusually powerful speaker violate our constitutional rights and liberties? More specifically, when does the government's expression threaten liberty or equality? And under what circumstances does the Constitution prohibit our government from lying to us? In The Government's Speech and the Constitution, Professor Helen Norton investigates the variety and abundance of the government's speech, from early proclamations and simple pamphlets, to the electronic media of radio and television, and ultimately to today's digital age. This enables us to understand how the government's speech has changed the world for better and for worse, and why the government's speech deserves our attention, and at times our concern.
Oxford Political Theory presents the best new work in contemporary political theory. It is intended to be broad in scope, including original contributions to political philosophy, and also work in applied political theory. The series contains works of outstanding quality with no restriction as to approach or subject matter. The series editors are Will Kymlicka, David Miller, and Alan Ryan. Any liberal democratic state must honour religious and cultural pluralism in its educational policies. To fail to honour them would betray ideals of freedom and toleration fundamental to liberal democracy. Yet if such ideals are to flourish from one generation to the next, allegiance to the distinctive values of liberal democracy is a necessary educational end, whose pursuit will constrain pluralism. The problem of political education is therefore to ensure the continuity across generations of the constitutive ideals of liberal democracy, while remaining hospitable to a diversity of conduct and belief that sometimes threatens those very ideals. Creating Citizens addresses this crucial problem. In lucid and elegant prose, Professor Callan, one of the world's foremost philosophers of education, identifies both the principal ends of civic education, and the rights that limit their political pursuit. This timely study sheds light on some of the most divisive educational controversies, such as state sponsorship and regulation of denominational schooling, as well as the role of non-denominational schools in the moral and political development of children.
The power and status of the press in America reached new heights after spectacular reporting triumphs in the segregated South, in Vietnam, and in Washington during the Watergate years. Then new technologies created instantaneous global reporting which left the government unable to control the flow of information ot the nation. The press thus became a formidable rival in critical struggles to control what the people know and when they know it. But that was, according to Richard Reeves, more power than the press could handle - and journalism crashed towards new lows in public esteem and public purpose. The dazzling new technologies, profit-driven owners, and celebrated editors, reporters, and broadcasters made it possible to bypass older values and standards of journalism. Journalists revelled in lusty pursuit after the power of politics, the profits of entertainment and trespass into privacy. Richard Reeves was there at the rise and the fall, beginning as a small-town editor, becoming the chief political correspondent of the "New York Times", and then a best-selling author and award-winning documentary film-maker. From the Pony Express to the Internet, Reeves chronicles what happened to the press as America accelerated into uncertainty, arguing that to survive, the press must go back to doing what it was hired to do a long time ago - stand as outsiders watching government and politics on behalf of a free people busy with their own affairs.
How free is the speech of someone who can't be heard? Not very--and this, Owen Fiss suggests, is where the First Amendment comes in. In this book, a marvel of conciseness and eloquence, Fiss reframes the debate over free speech to reflect the First Amendment's role in ensuring public debate that is, in Justice William Brennan's words, truly "uninhibited, robust, and wide-open." Hate speech, pornography, campaign spending, funding for the arts: the heated, often overheated, struggle over these issues generally pits liberty, as embodied in the First Amendment, against equality, as in the Fourteenth. Fiss presents a democratic view of the First Amendment that transcends this opposition. If equal participation is a precondition of free and open public debate, then the First Amendment encompasses the values of both equality and liberty. By examining the silencing effects of speech--its power to overwhelm and intimidate the underfunded, underrepresented, or disadvantaged voice--Fiss shows how restrictions on political expenditures, hate speech, and pornography can be defended in terms of the First Amendment, not despite it. Similarly, when the state requires the media to air voices of opposition, or funds art that presents controversial or challenging points of view, it is doing its constitutional part to protect democratic self-rule from the aggregations of private power that threaten it. Where most liberal accounts cast the state as the enemy of freedom and the First Amendment as a restraint, this one reminds us that the state can also be the friend of freedom, protecting and fostering speech that might otherwise die unheard, depriving our democracy of the full range and richness of its expression.
This timely and important book presents a compelling new theory of political education for liberal democracies. Amidst current concern over the need to encourage a morally sensitive and committed citizenry, Professor Callan's study provides a much-needed balanced discussion of the proper ends of education, as well as the moral rights of parents and children.
Although an inchoate liberty theory of freedom of speech has deep roots in Supreme Court decisions and political history, it has been overshadowed in judicial decisions and scholarly commentary by the marketplace of ideas theory. In this book, Baker critiques the assumptions required by the marketplace of ideas theory and develops the liberty theory, showing its philosophical soundness, persuasiveness, and ability to protect free speech. He argues that First Amendment liberty rights (as well as Fourteenth Amendment equality rights) required by political or moral theory are central to the possibility of progressive change. Problem areas are examined, including the question of whether individual political and civil rights can in principle be distinguished from property rights, freedom of the press, and the use of public spaces for expressive purposes.
This edited collection addresses a number of free speech vs security concerns that are engaged by counter-terrorism law and policy makers across a number of liberal democracies, and explores the delicate balance between free speech and the censoring of views that promote hatred or clash with fundamental democratic values. It does this by looking at the perspectives and level of disagreement between those who consider today's counter-terrorism and extremism strategies to be a soft and liberal approach, and those who believe these strategies disproportionately impact freedom of expression and association and non-violent political dissent. The contributors include academics, practicing lawyers, and think-tank analysts who examine whether universities and schools incubators of violent radicalism and debate, and whether the views of 'extremist' speakers and hate preachers need to be censored. Outside the UK, critical discussion of the regulation of counter-terrorism, extremism, and free speech in other liberal democracies is also offered. This book will be of great interest to researchers and practitioners with interests in extremism, terrorism, civil rights, and freedom of speech.
A controversial argument for reconsidering the limits of free speech Swirling in the midst of the resurgence of neo-Nazi demonstrations, hate speech, and acts of domestic terrorism are uncomfortable questions about the limits of free speech. The United States stands apart from many other countries in that citizens have the power to say virtually anything without legal repercussions. But, in the case of white supremacy, does the First Amendment demand that we defend Nazis? In Must We Defend Nazis?, legal experts Richard Delgado and Jean Stefancic argue that it should not. Updated to consider the white supremacy demonstrations and counter-protests in Charlottesville and debates about hate speech on campus and on the internet, the book offers a concise argument against total, unchecked freedom of speech. Delgado and Stefancic instead call for a system of free speech that takes into account the harms that hate speech can inflict upon disempowered, marginalized people. They examine the prevailing arguments against regulating speech, and show that they all have answers. They also show how limiting free speech would work in a legal framework and offer suggestions for activist lawyers and judges interested in approaching the hate speech controversy intelligently. As citizens are confronting free speech in contention with equal dignity, access, and respect, Must We Defend Nazis? puts aside cliches that clutter First Amendment thinking, and presents a nuanced position that recognizes the needs of our increasingly diverse society. A controversial argument for reconsidering the limits of free speech Swirling in the midst of the resurgence of neo-Nazi demonstrations, hate speech, and acts of domestic terrorism are uncomfortable questions about the limits of free speech. The United States stands apart from many other countries in that citizens have the power to say virtually anything without legal repercussions. But, in the case of white supremacy, does the First Amendment demand that we defend Nazis? In Must We Defend Nazis?, legal experts Richard Delgado and Jean Stefancic argue that it should not. Updated to consider the white supremacy demonstrations and counter-protests in Charlottesville and debates about hate speech on campus and on the internet, the book offers a concise argument against total, unchecked freedom of speech. Delgado and Stefancic instead call for a system of free speech that takes into account the harms that hate speech can inflict upon disempowered, marginalized people. They examine the prevailing arguments against regulating speech, and show that they all have answers. They also show how limiting free speech would work in a legal framework and offer suggestions for activist lawyers and judges interested in approaching the hate speech controversy intelligently. As citizens are confronting free speech in contention with equal dignity, access, and respect, Must We Defend Nazis? puts aside cliches that clutter First Amendment thinking, and presents a nuanced position that recognizes the needs of our increasingly diverse society.
How does censorship affect our basic right to freedom? Donald Thomas gives a disturbing insight into what those in power consider too dangerous to be seen, or said, by ordinary people. Freedom's Frontier reveals how censorship has restricted freedom of expression in the past, including obscenity prosecutions of major and minor writers in the first half of the twentieth century, and continues to silence us in the present with the more insidious tool of political correctness. From the use of seditious libel proceedings to stop rumours of George V's bigamy to the Mutiny Act used to silence Communist publications in the 1920s; from the use of the Official Secrets Act to ban the publication of Spycatcher to the Salmon Rushdie controversy in 1989, Donald Thomas chronicles a broad range of censorship cases. Freedom's Frontier argues that although we have won greater freedom of expression in some areas, we have lost the absolute liberty of political expression that was present in the Victorian era. This is a timely and thought-provoking book that challenges the boundaries of censorship and questions the definitions of freedom in today's society.
William Hone is the forgotten hero of the British Press. In 1817 he was compelled to defend himself against a government determined to enforce censorship. His fellow journalists, opposition MPs and the ministers believed that a verdict against Hone would silence all critical voices. It was a show trial, and Hone - a self-educated and obscure Fleet Street journalist who had to defend himself against the Lord Chief Justice and the Attorney General and in front of a jury hand-picked by the ministry - was the underdog, a supposedly easy victim for the state. Hone's crime was ridiculing the government. He was a noted satirist, who used laughter as a weapon to destroy censorship. His humour captured the imagination of the public; his satires sold in the hundreds of thousands. They were symbols of resistance for an angry public and were genuinely feared by his enemies. The Laughter of Triumph looks at the history of the struggle for free expression against repressive laws through the life of William Hone. Could the state push the law so far that humour was a crime? Or was it the only way to subvert censorship? As Hone implored his jury on the second day of his trials, 'Is a laugh treason? Surely not.'
How free are students and teachers to express unpopular ideas in public schools and universities? Not free enough, Joan DelFattore suggests. Wading without hesitation into some of the most contentious issues of our times, she investigates battles over a wide range of topics that have fractured school and university communities - homosexuality-themed children's books, research on race-based intelligence, the teaching of evolution, the regulation of hate speech, and more - and with her usual evenhanded approach offers insights supported by theory and by practical expertise. Two key questions arise: What ideas should schools and universities teach? And what rights do teachers and students have to disagree with those ideas? The answers are not the same for all schools as they are for public universities. But far from drawing a bright line between them, DelFattore suggests that we must consider public education as a whole to determine how, and how successfully, it deals with conflicting views. When expert opinion clashes with popular belief, which should prevail? How much independence should teachers have? How do we foster the cutting-edge research that makes America a world leader in higher education? What are the free-speech rights of students? This uniquely accessible and balanced discussion deserves the full attention of everyone concerned with academic goals and agendas in our schools.
Over the past two decades, there have been a series of events that have brought into question the concept and practice of free expression. In this new book, Winston provides an account of the current state of freedom of expression in the western world. He analyses all the most pertinent cases of conflict during the last two decades - including the fatwa against Salman Rushdie, the incident of the Danish cartoons and offended celebrities - examining cultural, legal and journalistic aspects of each case. A Right to Offend offers us a deeper understanding of the increasingly threatening environment in which free speech operates and is defended, as well as how it informs and is central to journalism practice and media freedom more generally. It is important reading for all those interested in freedom of expression in the twenty-first century.
'Chris Marsden maneuvers through the hype articulated by Netwrok Neutrality advocates and opponents. He offers a clear-headed analysis of the high stakes in this debate about the Internet's future, and fearlessly refutes the misinformation and misconceptions that about' Professor Rob Freiden, Penn State University Net Neutrality is a very heated and contested policy principle regarding access for content providers to the Internet end-user, and potential discrimination in that access where the end-user's ISP (or another ISP) blocks that access in part or whole. The suggestion has been that the problem can be resolved by either introducing greater competition, or closely policing conditions for vertically integrated service, such as VOIP. However, that is not the whole story, and ISPs as a whole have incentives to discriminate between content for matters such as network management of spam, to secure and maintain customer experience at current levels, and for economic benefit from new Quality of Service standards. This includes offering a 'priority lane' on the network for premium content types such as video and voice service. The author considers market developments and policy responses in Europe and the United States, draws conclusions and proposes regulatory recommendations.
Seasoned CBS reporter Sharyl Attkisson reveals how she has been electronically surveilled while digging deep into the Obama Administration and its scandals, and offers an incisive critique of her industry and the shrinking role of investigative journalism in today's media. Americans are at the mercy of powerful figures in business and government who are virtually unaccountable. The Obama Administration in particular has broken new ground in its monitoring of journalists, intimidation and harassment of opposition groups, and surveillance of private citizens. Sharyl Attkisson has been a journalist for more than thirty years. During that time she has exposed scandals and covered controversies under both Republican and Democratic administrations. She has also seen the opponents of transparency go to ever greater lengths to discourage and obstruct legitimate reporting. Attkisson herself has been subjected to "opposition research" efforts and spin campaigns. These tactics increased their intensity as she relentlessly pursued stories that the Obama Administration dismissed. Stonewalled is the story of how her news reports were met with a barrage of PR warfare tactics, including online criticism, as well as emails and phone calls up the network chain of command in an effort to intimidate and discourage the next story. In Stonewalled, Attkisson recounts her personal tale, setting it against the larger story of the decline of investigative journalism and unbiased truth telling in America today.
An exploration of the meaning of academic freedom in American higher education Debates about academic freedom have become increasingly fierce and frequent. Legislative efforts to regulate American professors proliferate across the nation. Although most American scholars desire to protect academic freedom, they have only a vague and uncertain apprehension of its basic principles and structure. This book offers a concise explanation of the history and meaning of American academic freedom, and it attempts to intervene in contemporary debates by clarifying the fundamental functions and purposes of academic freedom in America. Matthew W. Finkin and Robert C. Post trace how the American conception of academic freedom was first systematically articulated in 1915 by the American Association of University Professors (AAUP) and how this conception was in subsequent years elaborated and applied by Committee A of the AAUP. The authors discuss the four primary dimensions of academic freedom-research and publication, teaching, intramural speech, and extramural speech. They carefully distinguish academic freedom from the kind of individual free speech right that is created by the First Amendment. The authors strongly argue that academic freedom protects the capacity of faculty to pursue the scholar's profession according to the standards of that profession.
Professor Fiss examines contemporary free-speech issues in the context of the collision of liberal ideas of equality and freedom with modern social structures and speculates on what role the state might play in furthering robust public debate.
Does American free speech doctrine discriminate against women and minorities? In "Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine, " James Weinstein carefully examines the charge that in interpreting the First Amendment as protecting hate speech and pornography while allowing myriad other exceptions to free speech, American courts have privileged the interests of the rich and powerful over the interests of women and people of color. The author concludes that while free speech doctrine is not in any deep sense as neutral as some of its apologists believe, the claim that free speech decisions and principles systematically discriminate against women and minorities does not withstand scrutiny. He shows that this claim of discrimination is based upon a profound but widely shared misunderstanding of the actual workings of free speech doctrine.In order to expose this misunderstanding, the first section of the book thoroughly explores the basic cases and principles upon which free speech doctrine is built. The second section demonstrates that the relationship between free speech and equality is far more complex than either radical critics or many liberal defenders of doctrine suppose. The third section considers the cost and benefits of modifying free speech doctrine to allow for the suppression of hate speech and pornography. After reviewing the experience of hate speech and pornography in other democracies, Weinstein concludes that while such a modification would not lead straight to totalitarianism as alarmist defenders of current doctrine contend, it would nonetheless likely inhibit legitimate debate and artistic expression. Also contrary to dogmatic defenders of current doctrine, the author concludes that although the scientific evidence that pornography causes violence to women is not nearly as conclusive as radical feminists assert, this evidence is nonetheless cause for concern.While offering a scholarly analysis of the radical critique of free speech doctrine, this book has even larger ambition: to provide nonlawyers with the background to participate knowledgeably in the continuing debate about the role of free speech in a democratic society.
If the unexamined life is not worth living, surely the unexamined media is not worth heeding. Sentinel Under Siege traces the evolution of the media in the United States and its capacity to examine and regulate itself, from its earliest colonial roots to the modern explosion of digital technology.Once the Bill of Rights was enacted in 1791, the press became the first and only enterprise explicitly protected by the United States Constitution. This book is concerned with the legal content given to freedom of the press by the Supreme Court, and the fitful attempts of media criticism?both intramural and external?to build a greater sense of responsibility among the practitioners.Stanley Flink, former correspondent of Life Magazine and writer/producer at NBC and CBS, is concerned less with the people's right to know than with the people's need to know. Only a competent, responsible press?whatever its means of distribution?can perform the role of watchdog over official abuse of power, business corruption, and political distortions. But the acquisition of so many newspapers, magazines, and broadcasting facilities by corporate conglomerates threatens a new kind of prior restraint on an independent press?the conflicts of interest; the power of advertising; the unspoken self-censorship of reporters and editors, print or electronic, based on the perceived predilections of their employers; and the financial interests of related companies.Flink believes that responsible journalism can also be economically viable in the twenty-first century because the mass communication of reliable news reporting and media accountability will be vital to the democratic process. Unless the news media persistently seeks the high moral ground of public service, the first casualty will be an informed electorate. The second may well be constitutional protection.
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