‘Positive’ in positive free speech can mean enabled freedom or a legally (and perhaps judicially) protected right. Both meanings can be important. Understanding arguments for positive free speech and how some courts protect it reveals what the freedom entails, provides ideas and techniques for various constitutional actors, and suggests the improbability of legislatures alone protecting positive free speech enough. A partial framework for the positive freedom is taken from earlier chapters, drawing on media studies models of diverse media, the freedom’s democratic basis, analyses of positive human rights, political freedom, the US First Amendment, and constitutional law from Germany and France. Questions about democratic legitimacy and judicial rights protection are examined. Criticisms of judicial rights review can presuppose effective public speech, but such speech appears unlikely without legal protection of positive free speech which may well require judicial action, although questions remain about such action’s effectiveness. Finally, points are raised about applying historical lessons of this study to the changed contemporary environment for public speech.

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.