The Future of Free Speech Law

By R. George Wright | Go to book overview

8
The Pathological Complexity of
Free Speech Regulation

INTRODUCTION

Free speech case law permits the government to impose a wide range of restrictions on a similarly wide variety of forms of speech. The judicial tests employed to control or legitimize such restrictions have become increasingly complex. Even if we were all to agree on the precise purposes of the free speech clause, as well as on what constitutes speech in the first place, many cases involving government restriction of speech would still be unavoidably difficult. This is because no plausible approach to defining the limits on governmental power to restrict speech can avoid controversial valuations or controversial predictions of the future consequences of deciding a case in a particular way. But the unavoidable difficulty of some free speech cases does not, by itself, explain why the legal tests or doctrines applied should be as complex and multifaceted as the courts have made them. There is no reason in principle why admittedly difficult problems are necessarily better adjudicated by relatively complex tests.1

Free speech doctrine tends toward excessive, unjustified complexity for several reasons. The first is the fallacy that difficult problems are necessarily best resolved judicially through complex formulas. Second, our legal culture often places such a high value on freedom of speech that a judicial standard requiring a government seeking to restrict speech to meet a series of conjunctive requirements may be adopted so as to drive additional nails into the

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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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