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Confessions of a Free Speech LawyerCharlottesville and the Politics of Hate$
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Rodney A. Smolla

Print publication date: 2020

Print ISBN-13: 9781501749650

Published to Cornell Scholarship Online: January 2021

DOI: 10.7591/cornell/9781501749650.001.0001

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Competing Conceptions of Free Speech

Competing Conceptions of Free Speech

(p.61) 10 Competing Conceptions of Free Speech
Confessions of a Free Speech Lawyer

Rodney A. Smolla

Cornell University Press

This chapter focuses on the American debate over the meaning of “freedom of speech,” which has been a contest between two ideas: the “order and morality” theory and the “marketplace of ideas” theory. It discusses the “order and morality” theory as a conception of freedom of speech that is grounded in the notion that freedom of speech cannot be elevated above the “social compact” that binds society. It also emphasizes that speech that undermines order or morality may be punished by laws enacted through the democratic process. The chapter explains that the marketplace theory is the opposite of order and morality, arguing that it is grounded in the notion that democracy is subordinate to free speech. It clarifies that the test of truth and morality should be the power of a thought to win in the competition of the marketplace of ideas.

Keywords:   freedom of speech, order, morality, marketplace of ideas, social compact, democratic process, democracy, free speech

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