Modern Free Speech Doctrine
Legal doctrine--the body of rules governing an area of law--can be difficult to comprehend for several different reasons. Doctrine often involves ratified abstractions having little connection with anything tangible, as is the case, for example, with the rules governing the jurisdiction of federal courts. Others areas are difficult to master because of the sheer number of detailed and technical rules. Some areas are confusing because the law is in flux, with many conflicting precedents. Finally, as in other so-called learned disciplines, jargon often impedes laypeople's access to legal doctrine.
To some extent, free speech doctrine is beset with all these problems. But the primary reason that free speech doctrine is difficult is the same reason that basic problems of moral philosophy are difficult. Free speech problems often present basic questions of human conduct that people have been wrestling with for a very long time and that are answerable only through deep normative judgments. Personally, I find these normative questions far more perplexing than the technical abstrusities with which law professors often deal. The good news for the nonlawyer, however, is that the basically normative nature of free speech problems makes them far more accessible than, say, tax, copyright, or jurisdictional questions. Still, there is an important technical side to free speech doctrine that cannot be disregarded. Free speech doctrine is not merely a philosopher's code but a system of real-world rules constructed by judges in light of experience and professional judgment.
The following two chapters review basic free speech doctrine with one predominant aim: providing the reader with sufficient background to evaluate the various claims and charges that radicals have made about doctrine. Constitutional law scholarship in general and free speech scholarship in particular are marked by an unhelpful tendency to confuse the descriptive--what the law is--with the normative--what the law