chapter  3
Nussbaum’s capabilities approach and freedom of speech
Pages 15

Introduction It is arguable that freedom of speech, although it is usually thought of as a ‘negative’ liberty, is central to the capabilities approach as outlined by Martha Nussbaum. In this chapter I investigate the prominence of freedom of speech in Martha Nussbaum’s capabilities approach, in order to argue that freedom of speech is an essential component of it. This gives rise, inevitably, to a consideration of precisely what kind of ‘freedom’ would be meant when thinking of freedom of speech within this approach. The Nussbaumian capabilities approach as a whole clearly emphasizes positive enablement; that it is the responsibility of public policy not simply to refrain from interfering in people’s lives, in the sense that the negative conception of freedom of speech might require. Instead, it emphasizes that it is the responsibility of governments and policymakers to provide the requisite educational and institutional support to enable people to choose how to live well, and to choose who to be. What, then, would freedom of speech in a Nussbaumian framework look like? In order to answer this question, I will first provide a general outline of Nussbaum’s capabilities approach. This will be followed by an exegetical conceptualization of freedom of speech within this framework. I will then examine the implications of this conceptualization, arguing that these implications need to be drawn out and understood if the approach is truly to assist in the promotion of individual well-being in a holistic way. I will argue that the Nussbaumian capabilities approach gives a high prominence to freedom of speech. I will argue further that for this conceptualization to have meaning within this framework, it implies (at least) three ways of approaching public policy. The first is the negative-freedom idea that government ought, to the proper extent necessary, refrain from interfering in people’s speech opportunities. The second is that government is enjoined to create public policy that enhances the opportunity to speak for those who might, due to other circumstances, be denied that opportunity. The third is that government is enjoined to create public policy that seeks to limit, or overcome the effects of, ‘bad’ speech, by which I mean speech that limits the ability of other individuals to develop

their own capabilities. Although this might be taken by some to imply the justifiable restriction, or punishment, of too broad a range of speech, the argument is circumscribed by considering the constitutive, facilitative and architectonic role of speech in the development of human capabilities. Therefore, although I argue that the framework I present would permit the restriction or punishment of some speech, overall its emphasis is on the importance of free speech as a constitutive element of people’s lives, and this implies a commensurate responsibility to protect and enhance freedom of speech.