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Liberal Democracy: Does Not Require Libertarianism

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Ogged, riffing on Adam Liptak’s article about the United States as a (recent) outlier on free speech:

It’s dogma in the US that if you give up a strong commitment to the right of free speech, you’re well on the way to tyranny, but we have now several countries with a softer commitment to it and, frankly, we’ve come a lot closer to tyranny lately than they have. So what are the prudential or slippery slope arguments in favor of the American conception of free speech that take into account the experience of these other countries?

I am also inclined to prefer post-Brandenburg libertarian American doctrines on free speech. (At least in most areas; on campaign finance, I think other democracies have struck a balance more consistent with democratic values.) But the answer here, I think, is that marginal differences in free speech laws in democratic states really aren’t a road to tyranny. I think this is a subset of a larger fallacy: the conflation of rights, or even constitutional rights, with the strong judicial enforcement of rights against other political actors. Again, I’m inclined to prefer some form of judicial review on balance, but it’s hard to argue that the United States has a better human rights record than the U.K., New Zealand, Canada pre-1982, etc. The reductionist way of stating the problem is that in a county with strong democratic norms judicial review isn’t necessary to protect tyranny, and in a country without such norms judicial review won’t stop tyranny. (Mark Tushnet’s latest book is good on this.)

So while I think a strong argument can be made on behalf of American norms with respect to free speech, the idea that slightly more restrictive laws are a slippery slope to authoritarianism is not one of them.

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