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3 - Positive Free Speech and Democracy

Published online by Cambridge University Press:  28 May 2021

Andrew T. Kenyon
Affiliation:
University of Melbourne School of Law
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Summary

This chapter examines positive free speech and democracy. It suggests that positive free speech is part of the legitimacy claim of the constitutional democratic form in contemporary societies, rather than being linked to one or other version of democracy, such as libertarian, republican, agonistic or deliberative. Democracy presupposes a freedom of speech with certain qualities: communicatively legitimate democracy involves a basic role for sustained plural public speech, supported by positive and negative dimensions of free speech, and this is true across varied forms of democracy. This does not mean free speech need be a freedom without limits, nor that the analysis can usefully be applied under all formally democratic constitutions. At the least, an independent judiciary and a comparatively strong protection of free speech’s negative dimensions are needed for positive dimensions of free speech to be pursued.

Type
Chapter
Information
Democracy of Expression
Positive Free Speech and Law
, pp. 64 - 86
Publisher: Cambridge University Press
Print publication year: 2021

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