Steven J. Heyman (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Free Speech and Human Dignity (Yale University Press, 2008) on SSRN. Here is the abstract:
In recent years, issues such as hate speech and pornography have sparked intense controversy. Supporters of regulation argue that these forms of expression cause serious injury to individuals and groups, and assault their dignity as human beings and citizens. Civil libertarians respond that our commitment to freedom of speech is measured by our willingness to protect it even when it causes serious harm or offends our deepest values. When the problem is framed in this way, we seem to face a tragic conflict between free speech and human dignity - a conflict that goes to the heart of a democratic constitutional order. To overcome this conflict, this book presents a liberal humanist theory of the First Amendment. According to this view, freedom of speech is founded on respect for the autonomy and dignity of human beings. But these values also support other fundamental rights, ranging from personal security and privacy to citizenship and equality. Speech that invades these rights is subject to regulation through narrowly drawn laws, except in cases where the value of the speech is sufficient to justify the injuries it causes. This theory recognizes a strong, liberal right to free expression at the same time that it protects against the most serious forms of assaultive speech. In this way, the theory seeks to find some common ground between civil libertarianism and its critics. In developing this theory of free expression, the book draws not only on American constitutional history and jurisprudence, but also on the law of other liberal democratic nations, the international law of human rights, and the tradition of liberal political philosophy that runs from Locke, Kant, and Mill through Rawls and Habermas. The final part of the book applies the liberal humanist view to a wide range of contemporary problems, including hate speech, pornography, antiabortion protests, picketing at military funerals, news reports that reveal the identity of rape victims, flag desecration, and the publication of classified information in the war on terror.
Here is a link to the Amazon.com page for Heyman's important and deeply learned book. Highly recommended.