Nahmod Law

Introduction

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.

Content

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.

Medium

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.

Forum

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.

Conclusion

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.

The blog is back from vacation.

Introduction

When I begin teaching the First Amendment course, I introduce freedom of speech by briefly describing the conventional rationales of freedom of speech (this post) and then setting out three factors that are crucial for all free speech analysis (a subsequent post).

Three Rationales of Free Speech

1. Self-Government

Like the Constitution, a document that establishes a structure for self-government, the free speech clause of the First Amendment is a product of the Enlightenment. Citizens of the United States are to engage in self-government by using reason and practical judgment. Accordingly, one rationale of freedom of speech is that it is indispensable for self-government. People communicate on political matters so that they can intelligently participate in the democratic process.

This rationale is often identified with the work of Alexander Meiklejohn but it was articulated much earlier by Justice Brandeis in Whitney v. California.

Under this rationale, political speech ranks at the top of the First Amendment hierarchy, with other kinds of speech ranked in a derivative manner based on their relation to  political speech.

2. The Marketplace of Ideas

This rationale, long identified with Justice Holmes in his dissent in Abrams v. United States but actually going back to John Stuart Mill, posits that freedom of speech is important because, in a marketplace of ideas, the better ideas eventually prevail through competition. It is modeled both on laissez faire in the economic realm and on scientific experimentation.

Under this rationale there is no hierarchy of speech. The value of different kinds of speech depends solely on the marketplace’s assessment.

3. Self-Fulfillment and Individual Autonomy

This rationale treats freedom of speech as promoting every individual’s self-fulfillment and autonomy.

Under this rationale, non-political speech such as artistic expression is fully covered; as with the marketplace of ideas rationale, there is no hierarchy of speech. On the other hand, under this approach one wonders what is so special about freedom of speech inasmuch as other provisions of the Constitution–think substantive due process–similarly promote self-fulfillment and autonomy.

Observations

No single one of these rationales captures either the complexity of free speech issues or the actual free speech jurisprudence of the Supreme Court. For example, the self-government rationale does not do that good of a job in explaining why artistic expression and scientific speech should be protected by the First Amendment. Similarly, the marketplace of ideas and self-fulfillment/ individual autonomy rationales do not satisfactorily explain why obscene speech and child pornography are not at all protected by the First Amendment.

Only in combination do these rationales do an adequate job of justifying and explaining free speech jurisprudence. This is a point I made quite some time ago in a Wisconsin Law Review article on artistic expression. Others have made the same point.