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February 18, 2004
Miller on Bernstein on Balkin on Free Speech
Yesterday, Prof. Jack Balkin wrote a short post on his view of the purpose of freedom of expression in response to David Bernstein (Save Freedom of Speech, Get Rid of Public Universities?). Bernstein doesn't respond in depth (too busy), but notes the post as an example of "what the brightest minds on the left are thinking on such topics" (Balkin on Free Speech).
I believe that Balkin's view of the purpose of free speech being to promote democratic culture as absolutely spot on, and take exception to Bernstein's suggestion that this is a view from the left. Balkin may rightly be called a "leftist", but his views on freedom of speech are classically liberal, though not libertarian. For example, Balkin doesn't particularly privilege one type of speech over another (as Meiklejohn does), but sees participation in culture as a critical element. This doesn't seem to me particularly leftist, especially given the success of conservatives and rightists in taking advantage of democratic culture (i.e., right-wing bloggers and South Park Republicans).
Furthermore, Balkin believes that "freedom of speech involves important infrastructural elements in technology and institutions that undergird and enrich the system of free expression." In my view, this is obvious. Intellectual property law, telecommunications regulation, the postal service and even property law (to name but a few) all have profound implications for freedom of expression. Even so-called "content neutral" regulations can substantively alter our free speech rights. For example, the choice between end-to-end and centralized communications architectures are content neutral. However, they are not substantively neutral. One architecture will promote democratic freedom of expression values better than another. It hardly seems to me that this view of freedom of expression is leftist.
If you would like to know what the brightest minds, period, are thinking on such topics as freedom of expression and universities, Balkin's piece is a good place to start.
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