Freedom of Speech: A Reference Guide to the United States Constitution

By Keith Werhan | Go to book overview

4

The Central Organizing Principles of
Free Speech Jurisprudence

The modern history of the guarantee of freedom of speech and press mainly has been
one of a search for the outer limits of that right.

Justice John Marshall Harlan (Curtis Publishing Co. v. Butts
and Associated Press v. Walker, 1967, plurality opinion)

Nearly every human action that the law affects, and virtually all governmental activity,
involves speech. For First Amendment purposes this Court has distinguished among
contexts in which speech activity might arise, applying special speech-
protective rules and presumptions in some of those areas, but not in others.

Justice Stephen G. Breyer (United States v.
United Foods, Inc., 2001, dissenting opinion)

“Congress shall make no law … abridging the freedom of speech.” So reads the speech clause of the First Amendment. Justice Hugo L. Black, for one, read that text literally, insisting that its “unequivocal demand” prevented any and all efforts by the government to restrict the right of free speech in favor of competing societal interests (Konigsberg v. State Bar of California, 1961, dissenting opinion). For Justice Black, the purpose of the First Amendment, and indeed, of the Bill of Rights in general, was “to put the freedoms protected there completely out of the area of any congressional control.” His emphasis on the First Amendment's clear negation of congressional power (“no law”), however, ignored the studied ambiguity of the language “abridging” and “freedom of speech.” Do all laws that restrict individual expression thereby “abridg[e] the freedom of speech”? Does “freedom of speech” empower Americans to say whatever they please whenever, wherever, and however they wish?

-69-

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Freedom of Speech: A Reference Guide to the United States Constitution
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Series Foreword xi
  • Foreword xv
  • Acknowledgments xix
  • 1: A History of Freedom of Speech in the United States 1
  • 2: What Makes Freedom of Speech Special? 27
  • 3: The Problem of Subversive Advocacy and the Central Meaning of Freedom of Speech 43
  • 4: The Central Organizing Principles of Free Speech Jurisprudence 69
  • 5: The Codified First Amendment 81
  • 6: The Procedural First Amendment 129
  • Afterword 149
  • Bibliographical Essay 151
  • Table of Cases 167
  • Index 173
  • About the Author 177
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