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Free Speech Theory

Understanding the Controversies

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Edited By Helen J. Knowles and Brandon T. Metroka

The rallying cry of "Free speech!" has long served as a touchstone for liberals and conservatives, alike, engaged in political polarization conflict and discourse. The democratization of media and the feverish pitch of political polarization, however, have contributed to the weaponization of free expression. From Colin Kaepernick to "fake news," boycotts of partisan television programming to removals of Confederate monuments, internet neutrality to the silencing of college professors and all points between, citizens and pundits all too frequently wield the slogan of "Free speech!" as the sword and shield of political discourse. Oftentimes, ironically they do so with little regard for the views of their opponents. As a result, society risks trading a substantive value for an empty slogan or, far worse, blind authority.To rediscover the underlying assumptions and social values served by free expression, and to move current controversies beyond rhetorical flourishes, Helen J. Knowles and Brandon T. Metroka assemble an impressive group of legal and political scholars to address one overarching question: "Why should we value free speech?" Through analyses of several recent controversies invoking concerns for free expression, the contributors to this volume make complex political theory accessible, informative, and entertaining. Beginning with internet neutrality and ending with an overview of developing free expression controversies in comparable western democracies, experts reestablish the link between free expression and the underlying values it may serve. In doing so, this volume unearths values previously unexamined in our modern—but increasingly impoverished and bitter—political discourse.

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6. The Slants and Blurred Lines: The Conflict Between Free Speech and Intellectual Property Law (Jason Zenor)

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6. The Slants and Blurred Lines: The Conflict Between Free Speech and Intellectual Property Law

Jason Zenor

In the United States, political debates often revolve around the idealistic rhetoric of our founding documents. We wax-poetic about a right to life, liberty, and happiness. We argue for our inalienable rights to free expression, freedom of thought, and a right to privacy. We cite the legal truism that we are all created equal, thus deserving of equal protection of the law. These pithy phrases often stoke the fires of patriotism and make us believe in the exceptionalism of our democracy. But a right that rarely ignites such rhetorical flare is one’s right to private property. This is in part due to its terrible history, as people were once defined as property; but it is also because it reminds us of disputes over boundaries. And this right is inherently individualistic and combative—so, when building an aura of national pride, the other rights seem more conducive to one unified country.

However, property rights do appear in the founding documents. For example, in the Declaration of Independence, when the writers spoke of a “pursuit of happiness” they were thinking of a right to own land and the right to use that land as they wished. In many respects, it is as American as freedom of speech. Yet, there is a natural conflict between free speech principles and property law, especially when the property in question is...

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