Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine

By James Weinstein | Go to book overview

3
AN OVERVIEW OF MODERN FREE SPEECH DOCTRINE

In the previous chapter, I explored several basic rules governing several key areas of free speech doctrine, such as advocacy of illegal activity, fighting words, defamation, and commercial speech. But because the focus of that discussion was historical, emphasizing how the lessons from the past shape today's rules, I made no attempt to explain how these rules relate to each other or to survey the entire landscape of free speech doctrine. In this chapter, therefore, I canvass the basic rules and investigate how (or if) they form a coherent framework. I begin by discussing what is encompassed within the meaning of "speech" as that term is used in First Amendment case law. The bulk of the chapter, however, is dedicated to examining the rule against content discrimination. We will discover that despite some loose language in several Supreme Court decisions suggesting that all content-based regulations are presumptively unconstitutional, this is not the case. Rather, some types of content regulation are viewed suspiciously, whereas others raise no serious constitutional problems at all. I conclude the chapter by suggesting a way to make sense of this curious pattern.


THE BASIC TAXONOMY

The text of the First Amendment refers to "speech" and "the press." To prevent the purpose of the First Amendment from being stifled by cramped literalism, however, the amendment has been read more generally to protect "expression." Thus communication that is literally neither speech nor the press--such as photographs, films, paintings, and dance--is protected. But "expression" is an extremely capacious concept.

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