Guy E. Carmi*
(2007) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article
Abstract
This Article challenges the use of human dignity as an independent free speech justification. The articulation of free speech in human dignity terms carries unwarranted potential consequences that may result in limiting free speech rather than protecting it. This possible outcome makes human dignity inadequate as a free speech justification.
This Article also demonstrates why articulations of the rationales behind the argument from dignity are either superfluous, since they are aptly covered by the argument from autonomy, or simply too broad and speech-restrictive to be considered free speech justifications. As a matter of principle, the nexus between freedom of speech and human dignity should be construed as inherently contentious.
This Article combines theoretical and comparative analyses to demonstrate why European and other Western democracies are more susceptible to the use of human dignity, both in their constitutional doctrines and as a speech-restrictive term. Current American scholarship regarding dignity as a free speech justification neglects to recognize the harms of such discourse in a non-American setting, as well as in the United States. Thus, unintentionally, advocates of free speech may actually promote a justification that eventually will lead to speech restriction. For these reasons, the Article warns that inserting human dignity into the realm of free speech justifications may be analogous to inserting a “Trojan Horse,” with human dignity as “the enemy from within.”