Freedom of Speech (2): Content, Medium and Forum
The last post dealt with the three major rationales of freedom of speech. This one addresses the important factors to which attention must be paid in every free speech case: content, medium and forum.
The threshold consideration in free speech cases typically revolves around the content (the WHAT) of what is communicated. It turns out that, despite the power of the marketplace of ideas rationale, there is a free speech hierarchy consisting of several tiers, each of which receives a different level of First Amendment protection. At the top of the hierarchy is political speech (recall the self-government rationale), followed closely by artistic and scientific expression. At the bottom is speech that is not protected at all: for example, fighting words, true threats and obscenity. Commercial speech is in the middle.
It is also important to be sensitive to the particular medium of communication (the HOW) involved in a free speech case. The traditional media of oral speech and writing are ordinarily accorded the maximum protection, all things being equal. In contrast, electronic media such as radio and television are sometimes accorded less than that. Significantly, to this point the Internet has been treated by the Court for the most part as if it were a traditional medium.
Consider also that different media have different physical characteristics that sometimes play a determinative role in First Amendment analysis. For example, a sound truck with blaring announcements that are difficult to ignore is quite different from a person handing out leaflets who can be ignored or otherwise avoided.
The last important factor in free speech cases is the forum (the WHERE) in which the communication takes place. Thus, different kinds of public property to which speakers desire access are accompanied by different levels of protection. Maximum First Amendment protection is given in traditional public forums such as streets and parks, as well as in voluntary public forums created by government. At the other extreme is public property having a special purpose incompatible with free speech access. A public library’s reading room is one example of the latter.
I realize that the above is quite general. Still, these three factors, which I have found helpful for law students in understanding the First Amendment, must always be taken into account in free speech cases.
This brief explanation of these factors may also be useful for non-lawyers.