This chapter introduces the idea of an empowering state – one that provides its citizens with protection from vulnerabilities, resources to achieve their potential, and access to full participation in democratic institutions and decision-making. It argues that the last forty years have instead seen a disempowering state with many excluded by poverty and lack of opportunity, while for others active citizenship and participation were stifled. It contrasts the negative liberty of a neoliberal state – in which wealthy people and corporations are accorded freedom from interference and regulation – with the positive freedoms of a nurturing state – one that provides the wherewithal for each individual to achieve their potential.

It elucidates the many strands of an empowering state, beginning with the need for everyone to commit to making a fair contribution, rather than seeking ways to evade responsibility, and setting out the case for a far more progressive tax system than the one we currently have (which is shown to be essentially regressive). It discusses the need for greater democratic accountability and citizen engagement, with examples from pioneering local initiatives. Finally, it argues that protecting our natural environment and mitigating climate change require the support of an empowering state.

This chapter outlines the structural diversity of public speech that democratic government requires, and the claim that democracy entails positive freedom of communication, not only a negative freedom or liberty. The state has obligations to support communicative freedom; both positive and negative dimensions of free speech need protection for democracy to have substantial communicative legitimacy. This book, often using historical comparative material, examines speech and varied forms of democracy; what it would mean for society to have a voice, formulate judgments and make claims of government that are heard; and free speech law’s role in the voice, judgments and claims. The chapter explains terminology, challenges in the approach and sources used: media studies, human rights, political theory and legal writing and case law. Further possible sources are considered, including analyses based on communication rights and republican freedom. The book is not an exegesis of any one legal system but explores ideas and techniques relevant to positive dimensions of free speech. The aim is show how law should treat positive free speech and raise questions for democratic systems.

This chapter examines writing on positive human rights and political theory on positive freedom. The human rights analysis suggests positive free speech entails obligations on states to act for diversity in public speech to support autonomy and democratic practices, perhaps with courts having a role to frame positive free speech as a democratic precondition. Work from political theory is used to argue Isaiah Berlin’s analysis of positive and negative freedom has little relevance for positive dimensions of free speech. Other writers show positive communicative freedom is highly pluralistic, clearly connects with democratic goals, and includes negative liberty. Even for approaches generally within Berlin’s tradition, his essay should be left aside when discussing free speech. The writing examined in this chapter tends to place responsibility on institutional politics rather than judges. Similar ideas are evident in much of the legal scholarship considered in the next chapter. But it becomes clear in subsequent chapters why such a limited judicial role is unlikely to result in substantial positive freedom of speech, even if a larger judicial role also raises real challenges.