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| Freedom of Expression in the United States
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Source: Congressional Research Service - The Constitution of the United States of America: Analysis
and Interpretation
Freedom of Expression: The Philosophical Basis
Probably no other provision of the Constitution has given rise
to so many different views with respect to its underlying philosophical
foundations, and hence proper interpretive framework, as has the
guarantee of freedom of expression--the free speech and free press
clauses.25 The argument has been fought out among the commentators.
"The outstanding fact about the First Amendment today is that the
Supreme Court has never developed any comprehensive theory of what that
constitutional guarantee means and how it should be applied in concrete
cases."26 Some of the commentators argue in behalf of a complex of
values, none of which by itself is sufficient to support a broad-based
protection of freedom of expression.27 Others would limit the basis of
the First Amendment to one only among a constellation of possible values
and would
therefore limit coverage or degree of protection of the speech and press
clauses. For example, one school of thought believes that, because of
the constitutional commitment to free self-government, only political
speech is within the core protected area,28 although some commentators
tend to define more broadly the concept of "political" than one might
suppose from the word alone. Others recur to the writings of Milton and
Mill and argue that protecting speech, even speech in error, is
necessary to the eventual ascertainment of the truth, through conflict
of ideas in the marketplace, a view skeptical of our ability to ever
know the truth.29 A broader-grounded view is variously expounded by
scholars who argue that freedom of expression is necessary to promote
individual self-fulfillment, such as the concept that when speech is
freely chosen by the speaker to persuade others it defines and expresses
the "self," promotes his liberty,30 or the concept of "self-
realization," the belief that free speech enables the individual to
develop his powers and abilities and to make and influence decisions
regarding his destiny.31 The literature is enormous and no doubt the
Justices as well as the larger society are influenced by it, and yet the
decisions, probably in large part because they are the collective
determination of nine individuals, seldom clearly reflect a principled
and consistent acceptance of any philosophy.
Footnotes
Footnote 25: While "expression" is not found in the text of the First
Amendment, it is used herein, first, as a shorthand term for the
freedoms of speech, press, assembly, petition, association, and the
like, which are comprehended by the Amendment, and, second, as a
recognition of the fact that judicial interpretation of the clauses of
the First Amendment has greatly enlarged the definition commonly
associated with "speech," as the following discussion will reveal. The
term seems well settled, see, e.g., T. Emerson, The System of Freedom of
Expression (1970), although it has been criticized. F. Schauer, Free
Speech: A Philosophical Inquiry, 50-52 (1982). The term also, as used
here, conflates the speech and press clauses, explicitly assuming they
are governed by the same standards of interpretation and that, in fact,
the press clause itself adds nothing significant to the speech clause as
interpreted, an assumption briefly defended infra, pp.1026-29.
Footnote 26: T. Emerson, The System of Freedom of Expression 15 (1970).
The practice in the Court is largely to itemize all the possible values
the First Amendment has been said to protect. See, e.g., Consolidated
Edison Co. v. PSC, 447 U.S. 530, 534-35 (1980); First National Bank of
Boston v. Bellotti, 435 U.S. 765, 776-77 (1978).
Footnote 27: T. Emerson, The System of Freedom of Expression 6-7 (1970).
For Emerson, the four values are (1) assuring individuals self-
fulfillment, (2) promoting discovery of truth, (3) providing for
participation in decisionmaking by all members of society, and (4)
promoting social stability through discussion and compromise of
differences. For a persuasive argument in favor of an "eclectic"
approach, see Shriffrin, The First Amendment and Economic Regulation:
Away From a General Theory of the First Amendment, 78 Nw. U.L. Rev. 1212
(1983). A compressive discussion of all the theories may be found in F.
Schauer, Free Speech: A Philosophical Inquiry (1982).
Footnote 28: E.g., A. Meiklejohn, Political Freedom (1960); Bork, Neutral
Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971);
BeVier, The First Amendment and Political Speech: An Inquiry Into the
Substance and Limits of Principle, 30 Stan. L. Rev. 299 (1978). This
contention does not reflect the Supreme Court's view. "It is no doubt
true that a central purpose of the First Amendment `was to protect the
free discussion of governmental affairs.' . . . But our cases have never
suggested that expression about philosophical, social, artistic,
economic, literary, or ethical matters--to take a nonexclusive list of
labels--is not entitled to full First Amendment protection." Abood v.
Detroit Bd. of Educ., 431 U.S. 209, 231 (1977).
Footnote 29: The "marketplace of ideas" metaphor is attributable to
Justice Holmes' opinion in Abrams v. United States, 250 U.S. 616, 630
(1919). See Scanlon, Freedom of Expression and Categories of Expression,
40 U. Pitt. L. Rev. 519 (1979). The theory has been the dominant one in
scholarly and judicial writings. Baker, Scope of the First Amendment
Freedom of Speech, 25 UCLA L. Rev. 964, 967-74 (1978).
Footnote 30: E.g., Baker "Process of Change and the Liberty Theory of
the First Amendment, 55 S. Cal. L. Rev. 293 (1982); Baker, Realizing
Self-Realization: Corporate Political Expenditures and Redish's The
Value of Free Speech, 130 U. Pa. L. Rev. 646 (1982).
Footnote 31: Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591
(1982).
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