The Future of Free Speech Law

By R. George Wright | Go to book overview

1
Speech in the Constitutional Sense

INTRODUCTION

My primary purpose in this chapter is to defend a simple if unpopular thesis. I assume that the free speech clause of the first amendment has an appropriate range of applicability. The thesis is simply that the scope of coverage of the free speech clause should be determined by the broadest range of purposes or values that can coherently be thought to underlie the free speech clause. Where free speech values are not significantly implicated by any given expression or conduct, the expression or conduct is not entitled to protection under the free speech clause. The distinction between expression that is not within the scope of the clause and expression to be accorded at least some limited free speech protection is often not difficult to recognize. When properly drawn, this distinction should expedite the sound resolution of many free speech cases.

The unpopularity of this argument flows from its incompatibility with two schools of thought. The first school effectively substitutes "expression" for "speech," and rightly considers tolerance and pluralism as goods to be aggressively furthered whenever possible. It therefore detects speech, and free speech issues, in the most curious of contexts. This school tends toward one form or another of relativism or subjectivism and flirts with constitutionalizing libertarianism in general social conduct in order, it is alleged, to protect more securely genuine speech in a narrow sense. The second, opposing school, of less current practical

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The Future of Free Speech Law
Table of contents

Table of contents

  • Title Page iii
  • Copyright Acknowledgments v
  • Contents vii
  • Acknowledgments ix
  • Introduction xi
  • Note xiv
  • 1- Speech in the Constitutional Sense 1
  • Notes 23
  • 2- Hustler Magazine V. Falwell and The Hypertrophy of Free Speech Protection 33
  • Notes 50
  • 3- The Problem of Racist Speech 57
  • Introduction 57
  • Notes 83
  • 4- Free Speech and The Public School Student 95
  • Notes 123
  • 5- Fowler V. Board of Education: A Case Study in the Scope of Public School Teachers' Free Speech Rights 131
  • Introduction 131
  • Notes 148
  • 6 - Defining Obscenity: The Criterion of Value 153
  • Introduction 153
  • Notes 178
  • 7 - How to Decide Close Cases: An Illustration 185
  • Introduction 185
  • Conclusion 207
  • Notes 209
  • 8- The Pathological Complexity Of Free Speech Regulation 219
  • Notes 241
  • Conclusion: The Future of Freedom of Speech 255
  • Notes 263
  • Selected Bibliography 267
  • Index 269
  • About the Author 273
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