Duke Law Scholarship Repository

Title

From Freedom of Speech to Information Capability

Author

Tao Huang

Date of Award

2021

Document Type

Dissertation - Closed Access

Degree Name

Doctor of Juridical Science (S.J.D.)

Institution

Duke University School of Law

Abstract

The existing theories of free speech shared flaws in three aspects: they cannot deal with the challenges of the Internet, they account poorly for non-democratic countries, and the perspective of formal right or liberty has shortcomings. With of goal of overcoming the weaknesses of existing theories, this dissertation proposes a new theory which reformulates the freedom of speech as information capability. On the one hand, the new theory will use information, instead of speech or expression, as the central concept; on the other hand, capability will be argued to be more appropriate than right in epitomizing the underlying functions and values of information in the contemporary world. The methodology was borrowed from the capability approach (CA), initially proposed by Amartya Sen and Martha Nussbaum and then developed by other theorists. By applying the capability approach in the free speech field, I endeavor to demonstrate how and what elements of the approach can enrich and reshape our understanding of the freedom of speech, and how the existing theories can thus be reformulated to better cope with the three challenges that I identified.

As I will argue in chapter three, the exact reason for protecting the information capability is that it serves two important functions: instrumental and constitutive. On the one hand, information capability is instrumental for all the other central human capabilities, either through direct promotion or through the facilitation by the public action. On the other, information capability is constitutive for the formation of the capabilities (values) themselves, through the exercise of the public reason.

The information capability includes four parts, as will be elaborated in chapter four: right of control over one’s information (information privacy), right to know (freedom of information), right of access to platforms, and the behavioral rules that governing the public debate. I will divide the conditions of realizing the information capability into two stages: basic and ideal. This four-part/two-stage framework will help guide the decisionmakers—be it judge, government official, or legislator—in making rules and resolving disputes. I provide a sketchy description in chapter five of some of the practical implications of my proposed theory and doctrine. Four cases will be selected for analysis: the EU’s right to be forgotten, the information disclosure laws of China, the blocking of social media platforms, and the Indian hate speech case. They correspond to the four parts of my doctrinal framework. To be sure, those thoughts will be unavoidably preliminary and tentative, since the practical implications will display themselves more fully through discussions and practices in the future.

Citation

Huang, Tao, From Freedom of Speech to Information Capability (2021) (unpublished S.J.D. dissertation, Duke University School of Law)