THEORY AND HISTORY
The goal of free speech doctrine can be easily stated: forbidding government from suppressing speech that must be permitted in a free and democratic society while allowing it to punish speech that causes harm that government may legitimately prevent. Accomplishing this goal is not so easy. Clearly, there is some expression, such as advocacy of law or policy reform through peaceful, democratic means, that must be protected against government suppression. Just as surely government must not be constitutionally inhibited from prohibiting speech such as perjury, bribery, or solicitation to murder. But what about speech that advocates social change through violence or other forms of law violation or that defames public officials? Or political protests that use offensive phrases like "fuck the draft" or inflammatory symbols such as flag burning? Or sexually explicit speech whose primary purpose and effect is sexual arousal?
In order to decide hard cases like these, we must have a fairly clear vision of why the Constitution limits the government's power to suppress speech. To this end, in the first section of this chapter I attempt to identify the various values underlying American free speech doctrine. Like all law, though, free speech doctrine is not just a product of theory but of experience and pragmatic judgment as well. As we shall see, early attempts to construct constitutional rules to separate protected from suppressible speech did not adequately account for the tendency of legislators, prosecutors, and even judges to confuse offensive critique of government policies with speech that actually impedes the government's ability to carry out its legitimate functions. I therefore review in some detail what are now seen as failed attempts to construct free speech doctrine that correctly strikes the balance between the individual's right to critique society and the government's ability to accomplish its proper goals.