Steven Heyman's "Free Speech and Human Dignity"

Steven J. Heyman is Professor of Law, Chicago-Kent College of Law.

He applied the "Page 99 Test" to his new book, Free Speech and Human Dignity, and reported the following:

The problem I address in this book is how the law should approach conflicts between free speech and other values such as dignity, equality, privacy, and freedom from violence. Such conflicts lie at the heart of many recent debates, from hate speech and pornography to antiabortion protests and picketing at military funerals. As everyone knows, it’s almost impossible to find common ground in disputes like this. Instead, the two sides tend to talk past each other. One side argues that the speech causes serious harm to individuals, groups, or the community at large. The other side responds that our commitment to free speech is measured by our willingness to protect it even when it causes serious harm or offends our deepest values. Unfortunately, the debate rarely seems to move beyond this point. The underlying problem is that we have no coherent framework that would allow us to decide when speech should be protected, and when it can be regulated to protect other values. As a result, First Amendment controversies often seem irresolvable.

In the book, I seek to overcome this problem by developing a liberal humanist theory of the First Amendment. According to this view, freedom of speech is founded on respect for the autonomy and dignity of human beings. But these values also support other fundamental rights, ranging from personal security and privacy to citizenship and equality. Speech that invades these rights is subject to regulation through narrowly drawn laws, except in cases where the value of the speech is sufficient to justify the injuries it causes. This theory recognizes a strong, liberal right to free expression at the same time that it protects against the most serious forms of assaultive speech. In this way, the theory seeks to find some common ground between civil libertarianism and its critics.

In the section that ends on page 99, I address a somewhat different problem. How should the First Amendment apply when the government is not restricting speech, but is providing affirmative support for it (for example, by funding the arts)? Once again, I develop a centrist position on this issue: although the government should have substantial authority to determine how public funds are allocated, it must do so in a way that is fair in light of the purposes of the program, and that respects the liberty and equality of individuals who wish to participate in it.

Learn more about Free Speech and Human Dignity at the Yale University Press website.

Visit Steven Heyman's faculty webpage.

--Marshal Zeringue