Monday, March 2, 2009

Werhan on The Classical Athenian Ancestry of American Freedom of Speech

The Classical Athenian Ancestry of American Freedom of Speech is an article by Keith Werhan, Tulane University School of Law. It will appear in the Supreme Court Review (2008) [sic: though dated in 2008, it will appear in 2009]. Here's the abstract:
This article explores how the fundamentally different understandings of self-government in the classical Athenian democracy and under the American Constitution shaped the role and limits of freedom of speech in the two political communities. Despite the profound differences between the highly participatory direct democracy of classical Athens and the relatively restrained representative democracy of the United States, Athens and America, because they were democracies, embraced freedom of speech as a fundamental element of their political systems. The article claims that the kinship between Athens and America as democracies - different though they may be - has created a sufficiently close connection between the basic principles of freedom of speech as practiced in Athens and as protected in America that it fairly may be said that American free speech jurisprudence is a descendant of the classical Athenian democracy. The article argues further that the importation of classical Athenian principles into American free speech jurisprudence resulted not only from the logic of democracy, but also from the purposeful embrace of classical Athens as a model democracy by Justice Louis D. Brandeis, Alexander Meiklejohn, and (indirectly) John Stuart Mill, each of whom helped to shape the modern American understanding of freedom of speech. And yet, because the Athenians and the Americans tailored free speech principles to fit their distinct democratic practices, the differences in the Athenian and American understandings of freedom of speech - which at times are fundamental - reflect, as they reveal, the different constitutional commitments of the two societies.

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