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Freedom of Speech and Segmenting the Citizens
Unformatted Document Text:  ICA-10-10582 7 In short, the proponents of the Chilling Effect approach argue that being under surveillance and the scrutiny of social pressure deprives the individual of the opportunity to develop an autonomous self and chills her rights to freedoms of speech, conscience and association, thereby jeopardizing the well being of the democratic system. Given all these considerations, the Chilling Effect approach sets a concrete understanding of the downfalls of not having constitutional privacy rights. The constitutional tension we are concerned about stems from the conflict between the corporations’ so called First Amendment Right of access to personal information and the citizens’ First Amendment Rights of free speech, freedom of association and freedom of conscience. Citizens are threatened by the very surveillance practices that corporations claim as essential to their exercise of speech. One of the strongest critiques of the Chilling Effect approach is Eugene Volokh, who characterized approaches that set any constitutional right against Freedom of Speech as the Constitutional Tension Approach. The Constitutional Tension Approach requires “identifying certain values that the Constitution protects and suggesting that the Constitution’s free speech… must…yield to these values” (Volokh, 1996, p.1). Volokh argues that one does not have to read constitutional provisions as proposing values and rights that are in tension with each other. Instead, he proposes, one should read the Constitution primarily as setting up certain powers and limits on the government (p.7). He argues that imposing limits on free speech on the basis of some other constitutional concerns would constitute a slippery slope where further limitations on speech would follow (2001, p.56). One of the basic premises behind Volokh’s argument is that the First Amendment already provides a code of “fair information practices”. Accordingly, regardless of whether the communication is fair or not, the First Amendment bars the government from controlling communication of information (2000, p.1051). Volokh argues that government’s imposition of any other fair information rule poses speech restrictions that are not constitutional.

Authors: Popescu, Mihaela. and Baruh, Lemi.
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ICA-10-10582
7
In short, the proponents of the Chilling Effect approach argue that being under
surveillance and the scrutiny of social pressure deprives the individual of the opportunity to
develop an autonomous self and chills her rights to freedoms of speech, conscience and
association, thereby jeopardizing the well being of the democratic system. Given all these
considerations, the Chilling Effect approach sets a concrete understanding of the downfalls of
not having constitutional privacy rights. The constitutional tension we are concerned about
stems from the conflict between the corporations’ so called First Amendment Right of access
to personal information and the citizens’ First Amendment Rights of free speech, freedom of
association and freedom of conscience. Citizens are threatened by the very surveillance
practices that corporations claim as essential to their exercise of speech.
One of the strongest critiques of the Chilling Effect approach is Eugene Volokh, who
characterized approaches that set any constitutional right against Freedom of Speech as the
Constitutional Tension Approach. The Constitutional Tension Approach requires “identifying
certain values that the Constitution protects and suggesting that the Constitution’s free
speech… must…yield to these values” (Volokh, 1996, p.1). Volokh argues that one does not
have to read constitutional provisions as proposing values and rights that are in tension with
each other. Instead, he proposes, one should read the Constitution primarily as setting up
certain powers and limits on the government (p.7). He argues that imposing limits on free
speech on the basis of some other constitutional concerns would constitute a slippery slope
where further limitations on speech would follow (2001, p.56).
One of the basic premises behind Volokh’s argument is that the First Amendment
already provides a code of “fair information practices”. Accordingly, regardless of whether
the communication is fair or not, the First Amendment bars the government from controlling
communication of information (2000, p.1051). Volokh argues that government’s imposition
of any other fair information rule poses speech restrictions that are not constitutional.


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