FREE EXPRESSION THEORIES (Strategies) Reading List Note: The purpose here is to give you a very general introduction into some of the ways used to define the meaning of "freedom of speech" and "freedom of the press." It is only an introduction and to a significant (some might say alarming) degree we mix apples, oranges and lemons in order to illustrate some basic concepts. The Marketplace of Ideas [W]hen men have realized that time has upset many fighting faiths, they may come to believe...that the ultimate good desired is best reached by free trade in ideas--that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. Abrams v. United States (1919) (Holmes dissent) The Individual and the Community Libertarian Communitarian Original Intent The intent of the framers is the determinative factor in interpreting the meaning of the speech and press clauses of the First Amendment. Instrumental The freedoms protected in the First Amendment are those that enable a democratic society to function. Individual Right First Amendment freedoms are fundamental rights for the individual in a free society. The Clear and Present Danger Test The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. [The] question in every case is whether the words are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Schenck v. United States (1919) This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present...To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent...that the evil to be prevented is a serious one...The wide difference between advocacy and incitement...must be borne in mind... Whitney v. California (1927) (Brandeis concuring). The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions. Brandenburg v. Ohio (1969) Absolutist Theory "Congress shall make NO LAW..." For the First Amendment does not speak equivocally. It prohibits any law "abridging the freedom of speech, or of the press." It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow. J. Black, Bridges v. California (1941) However... Speech/Action distinction All actions with a communicative component are not speech! "Cohen's absurd and immature antic, in my view, was mainly conduct and little speech." Cohen v. California (1971), Blackmun, dissent. 403 U.S. 15; 91 S. Ct. 1780; 1971 U.S. LEXIS 32; 29 L. Ed. 2d 284 Also see: Huffman and Wright Logging Co. v. Wade, 317 Ore. 445; 857 P.2d 101; 1993 Ore. LEXIS 132 (Or. 1993). Balancing Theories Ad hoc (case-by-case) balancing Preferred Position balancing "Strict Scrutiny" "Compelling State Interest" Pickering v Bd. of Education, 391 U.S. 563, 88 S. Ct. 1731, 1968 U.S. LEXIS 1471 (1968) Categorical Approaches Libel and Privacy Obscenity Broadcasting Commercial Speech