The Collapse of Freedom of Expression

History is a valuable source for refining arguments and putting them into context. The recognition of human rights came from two very different revolutions that wanted to establish political freedoms, which were drawn up in constitutions. As Arendt notes, the French Revolution was more a liberation from the Old Regime, with sharp anti-clerical tones. The American Revolution, on the other hand, sought to establish freedoms and to create something new. Both traditions diverged not only philosophically but legally. French continental law was based on a broad set of complicated laws of the state that established the rules for the exercise of freedoms, trying not to avoid legal vacuums. The Anglo-American tradition, however, was based on common law and self-government by the citizens, limiting the regulatory power of the state. This has also determined its approach to freedom of expression as a negative right.

The grounding of these political freedoms is an ongoing battle. The shift from an original objective paradigm grounded in natural law to a more subjective paradigm—crafted by Harvard scholars—that is determined by social interests which change with culture and are determined by the state, has changed the way Americans think and speak about the First Amendment. This shift has deeply influenced the debate on the foundations of freedom of expression.

When looking at the source of these foundations and its problems, I have tried to look not only to the historical events like revolutions or key dates, but to the development of the history of ideas. This exercise in analyzing the source and the evolution of key notions related to freedom of expression helps us to understand further developments. In this sense, the genesis of modern individual liberty is rooted in Protestant thought. Following in the nominalist footsteps of Ockham, Luther separates freedom from its relationship with a natural order and natural ends (telos), and he distrusts the role of human practical reason, which does not discover through its operation the good to be done. Freedom becomes autonomous and subjective, and ultimately a mere choice of the will. This approach to individual freedom is a clue for understanding the journey of individual rights.

The chasms created by distrust in practical reason and the crisis of moral objectivity are filled by a framework of legal and moral positivism. On these grounds, a new authority has granted and continues to grant rights based exclusively in positive law, rejecting natural law as a foundation of rights and duties. This shift expanded the list of rights, for the sake of granting all desires, thereby becoming a champion of social freedoms. The conflicts between them were to be solved by a utilitarian calculation. I believe this functional positivist way of reasoning is incomplete and reductive. This is not a parochial argument, and it directly affects the philosophy of freedom of expression and its legal solutions. The Protestant notion of freedom in the public sphere fails to include an important nuance: the distinction between freedom and license, that is, the difference between freedom of expression and the abuse of expression. This is not a moralistic statement, but a shift in the idea of political freedoms that is rooted in Ockham and Luther.