Intellectually Humble Free Speech Law
Scholars familiar with the philosophical arguments in favor of robust free speech protections commonly identify three kinds of arguments given in favor of such protections:
1. Free speech helps us discover truth,
2. Free speech is required for democratic self-governance,
3. Free speech is an important part of autonomy.
Contemporary social and political circumstances—including the persistent spread of viral misinformation via social media—have called these traditional arguments into question.
Can we really claim that free speech helps us discover truth when the data suggest that falsehoods travel, on average, much faster and farther than truthful corrections? Does free speech, on balance, help preserve democracy when the integrity of elections is being undermined by orchestrated viral disinformation campaigns?
Such questions prompted by social, political, and material reality ought to be taken seriously. Taking such questions seriously may require us to reconsider what kinds of arguments best ground free speech rights. This may, in turn, require us to reconsider what good free speech law and policy should look like.
