Academic

Sammons on an Aesthetic Justification for Freedom of Speech

By Lawrence Solum

Jack Lee Sammons (Mercer University) has posted Censoring Samba: An Aesthetic Justification for the Protection of Speech (Stetson Law Review, Vol. 37, No. 3, 2008) on SSRN.  Here is the abstract:

Responding to well known challenges to any attempt to justify any principle for the protection of speech, this Article argues that principled protection of speech is justified because speech, all speech, has as one of its elements a participation in the same self-justifying activity that the aesthetic always is. To demonstrate what he means by "the aesthetic", to show the aesthetic aspect of speech, and to explain why this aspect justifies speech's protection, the Author takes his readers into the "polity of samba," an aesthetic cultural community, in Brazil in the sixties, as it defends its samba speech against the censorship of the "polity of common sense." In doing so, he focuses on the role played by the famous Brazilian composer, Chico Buarque, who, he argues, was the primary voice of the polity of samba. (Links to Buarque's most important musical compositions from this time are provided in footnotes.) From this Brazilian samba experience, and from Buarque, the Author argues, we can learn that expressive speech is always grounded in the ongoing possibility of the aesthetic and is always to be found at the boundaries between the polities in which we live our lives. It is this being at the boundary, and thus capturing our fullness, that makes speech special, that is, distinguishable from our other activities, and justifies the special protection that we offer to it. Showing how surprisingly similar conceptions of speech can be found in the early opinions of Judge Hand and Justice Holmes, the Article goes on to explain how such a justification for speech works in the law. It does so, the Author argues, in a manner similar to the way moral intuitions work in moral decision-making: as non-inferentially justified principles, grounded only in our experience, that operate as prima facie, defeasible, thumbs on the scales in judicial decision-making about speech. The Article then concludes with the Author's appeal to law teachers to nurture a non-instrumental, non-political, samba conception of law, one not reducible to force, as against what he sees as the instrumental and political conception of law lying behind the claims of those who reject any principled protection of speech.

Full post as published by Legal Theory Blog on October 24, 2008 (boomark / email).