This chapter analyzes the terminology of negative and positive liberty used in the book. The difference in the approach to freedom of expression can be considered through the prism of the “quarrel between the Ancients and the Moderns.” The understanding of the role of the government in France as defining the content and limits of freedom of expression is an amalgam of elements of antiquity and modernity. It is reminiscent of the conception of the Ancients that the state incarnates prudence. In the United States, the spirit of the law on freedom of expression is closer to modernity and to natural rights philosophy. The historical heritage of absolute monarchy defined, on the imaginary level, the terms of the substitution of the nation for the king following the French Revolution. The American Revolution led to a conception of distrust toward the government. The central place of the law in the clauses that concern rights of the French Declaration shows trust toward the legislator to define the content and limits of liberty. The American declarations of rights, on the other hand, aim at guaranteeing rules, and transcend and limit ordinary legislative power.

The conclusion evaluates the tendency to overdetermine the content of freedom of expression in France versus the tendency to underdetermine the content of the same liberty in the United States. It engages in a reflection on whether principles and rules elaborated in the past to meet concrete sociopolitical needs are still relevant to address contemporary concerns in the understanding of the limits of rights. It includes reflections on how variety in the protection of freedom of speech can be instructive in view of finding criteria that balance between expressive freedoms and other values when they are in conflict. The United States may be overprotecting freedom of speech in some respects and France may be underprotecting the same freedom. The chapter engages with contemporary debates on expressive freedoms and proposes criteria for government intervention to limit expression (or not) in each one of these cases. It proposes criteria to decide when the reason of the citizen is to be trusted over the reason of the state and the other way around.

The conception of the state as having the mission to accomplish the role of regenerating citizens was omnipresent among the actors of the French Revolution, in particular the Jacobins. Elements from this vision inspired by Rousseau permeated the understanding of the role of the government in France, and is present even today. This conception leads to state paternalism. The state will define the opinionst that are worthy of being heard and those that are harmful. The political needs to which the Americans were confronted found their expression in the optimism of Locke and the Scottish Enlightenment. These thinkers express trust in the self-regulating potential of civil society. This conception would legitimize minimal impact of the political order upon the social. The political order and, by extension, the legal order, would be limited to arbitrating the differences that emerge within civil society. These ideas can constitute the prism through which the American conception of freedom of expression can be understood. Today, this conception means minimal regulation of speech by the government. Political correctness is a mode of self-regulation in the spirit of Smith’s thought.

In France, the dominant conception of natural law echoes that of the Ancients, according to which the natural state of humanity is social. Men and their liberty reach their perfection in society. If it is being a citizen that makes a human being, then the rights of a person are those that are recognized for them by political society. The rights of the man are founded upon the rights of the citizen. The American Declaration of Independence, the state bills of rights and the Amendments to the Federal Constitution emerged in a different intellectual atmosphere. A conception of rights as “natural” was dominant in the period that led to the Declaration of Independence. This conception built on a tradition of constitutionalism that emerged in the American colonies in the seventeenth century. If rights are recognized only to the extent that they promote the public good, as is the case in France, then it is legitimate for the state to define the content and limits of freedom of expression. The natural rights philosophy dominant in the United States makes similar limitations illegitimate. Current First Amendment doctrine reflects these ideas.

This chapter discusses the difference in the understanding of liberty in France and the United States. In the United States, freedom of expression is protected in the negative sense. In France, some of its positive aspects are protected too. The French revolutionaries understood liberty in a metaphysical and universal sense, encompassing all three meanings of liberty as political, negative, and positive (what later became the rights of the welfare state). French revolutionaries were concerned by the need to guarantee the necessary preconditions for the exercise of liberty, whereas the American revolutionaries were pragmatists. The French Revolution brought about a reconceptualization of the role of the government, whereas the American Revolution led to a definition of the limits of the role of the government. In France, the state guarantees that the distinction between formal liberty and real liberty does not exist. In the United States, the state is not generally seen as having this mission. When it became legitimate for the state to intervene in the economic sphere, freedom of expression became the symbol of American distrust toward the government.

This chapter discusses the importance of freedom of speech in reference to Enlightenment thinkers, among others. It analyzes deontological and consequentialist defenses of this freedom in order to provoke a reflection on its legitimate limits. Then, it presents cases in the United States where reference to human dignity serves to justify a protective conception of freedom of expression and cases in France where reference to the same concept serves e to justify limitations of the same liberty. The argument in this book builds off Hans-Georg Gadamer’s analysis of legal hermeneutics. According to this analysis, anticipations of meaning condition the receptivity of a reader of a text. The ex ante understanding of the role of the government present in jurists in France and the United States affects their understanding of the legitimate limits to freedom of expression. The difference in the approach indicates a difference with regard to the “imaginary institution” of the political phenomenon on each side of the Atlantic.