Jack Balkin on Cultural Democracy and the First Amendment

Jack Balkin在SSRN上面發表了一篇文章:Cultural Democracy and the First Amendment,認為一般支持第一修正案的理由,若非是保障個人自由就是促進民主。但是他從檢討Alexander Meiklejohn的第一修正案的民主理論開始,他認為:「Meiklejohn’s theory of freedom of speech, in other words, assumes a certain political economy of speech production, and it makes a virtue of necessity. Because most people won’t own radio or television stations, free speech theory must focus on the public’s role as an audience. Hence, as Meiklejohn’s once put it, it is not necessary that everyone gets to speak, as long as everything worth saying gets said.」,但認為這樣的觀點在網路的溝通時代已經不適用了,用Balkin自己的話來說就是溝通的模式在20世紀末已經不一樣了,從這裡開始他開始論述在數位時代中的文化權力與生產的觀點。這一段話或許值得思考:「One reason to protect the freedom of expression is to make the power of the state accountable to the people who live within it. But another reason is to give people a say over the development of the forms of cultural power that both undergrad and transcend the state. In a free society, even in one that  not perfectly democratic in its politics- or even democratic at all- people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals. 」這一篇很精彩,雖然我覺得許多觀點不算是特別新穎,但是Jack Balkin的論述是全面的,看他的文章結構就知道了(這應該是一本書的架構吧!)強烈推薦!!



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