The System of Freedom of Expression

1
The System of Freedom of Expression

• Development of
• Freedom of Speech

2
Speech as the American right?

• First Amendments absolute wording
• Congress shall pass no law
• Cf. unreasonable search and seizure
• Cf. freedom from excessive bail
• First-ness a quirk of history

3
Development of First Amendment doctrine

• Schenck clear and present danger test

4
Development of First Amendment doctrine

• Abrams marketplace of ideas

5
Development of First Amendment doctrine

• Gitlow application to states
• Whitney more speech, not enforced silence
• Brandenburg imminent lawless action

6
Patriot Act

• Passed swiftly in response to 9/11
• Provides extraordinary executive powers
• Makes FOIA requests more difficult
• Expands use of national security letters

7
Theories of Freedom of Speech

• Freedom only from Prior Restraint?
• Absolutism
• Meiklejohnian
• Access
• Balancing

• Ad hoc
• Two-Step
• Preferred Position

8
Why is Free Speech Important?

• Seeking Truth

• J. S. Mill
• DuVals Pact with the Devil

9
Why is Free Speech Important?

• Self-Fulfillment

10
Why is Free Speech Important?

• Self-Governing

11
Why is Free Speech Important?

• Safety Valve

12
Why is Free Speech Important?

• Checking Function

• Lousy People

13
What does Free Speech protect?

• Speaking and Publishing

14
What does Free Speech protect?

• Choosing NOT to speak

15
What does Free Speech protect?

• Listening or Reading

16
What does Free Speech protect?

• Freedom of Association

17
What does Free Speech protect?

• Symbolic Conduct