Freedom of Expression, Liberalism and Harmful Expression

Date & time

1–2pm Wednesday 12 August 2020

Venue

via Zoom

Speakers

Dr Jelena Gligorijevic

Contact

Research Office

Presented by Centre for International and Public Law (CIPL)

CIPL Monthly Seminar

Part of the ANU College of Law Research Seminar Series 2020 series

Freedom of Expression, Liberalism and Harmful Expression

Freedom of expression has long been the subject of philosophical inquiry. Various theories have been furthered to explain and justify its protection, and, on top of this unsettled theoretical terrain, political debate is ongoing about how harmful expression should be addressed, including in the law.

In this context we should resist shifting focus from the freedom of expression to the harm of expression, and we should recall the liberal morality of freedom of expression in order to clarify how the liberal state may address harmful expression.

I will argue that freedom of expression is an absolute moral right, obligating the state not to interfere with expression on the basis of its appeal to independent reason. It is a precondition for liberalism, because it is necessarily entailed in the Kantian imperative of minimal inherent dignity and autonomy.

This deontological morality of freedom of expression has been neglected in consequentialist constructions of freedom of expression, which eschew the liberal presumption of capacity for independent reason, and focus upon harmful effects of expression.

I propose an Independent Reason Rationale for addressing harmful expression, to reorientate the state to its deontological obligations regarding freedom of expression. Limiting harmful expression inconsistently with that rationale breaches the moral right to freedom of expression.

The state might be forced to breach that right if it faces a conflict between it and another absolute moral right, like the right to life and security, but that breach remains a departure from liberalism.

Speakers

  • Dr Jelena Gligorijevic »

    Dr Jelena Gligorijevic is a Lecturer at ANU College of Law. Her doctoral thesis, “A more principled approach to the conflict between privacy and freedom of expression in the law of misuse of private information”, examines the resolution of cases in misuse of private information, with a view to making judicial reasoning more transparent, principled and consistent. She applies analytic philosophy and the concept of rights-conflicts, arguing courts must approach such cases with a method of reasoning that is clearly anchored in the normative underpinnings of the conflicting rights. She explores different theories of rights-conflict resolution and the philosophical underpinnings of privacy and freedom of expression, before critiquing current doctrine, finding it to be dominated by utilitarian considerations of the ‘public interest’, and ultimately disengaged from the two rights. She argues for a re-orientation of the common law to the very rights which it purports to protect, and proposes a new “tailored proportionality-optimality method”, for adjudicating informational privacy.

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