Freedom of Speech
and
Freedom of the Press:
History and Philosophy
The paradox of Freedom
Public Safety
v.
Individual Rights
“They that can give up essential liberty to
obtain a little temporary safety deserve
neither liberty or safety.”
Benjamin Franklin, Historical Review of
Pennsylvania (1759)
John Milton
Areopagitica
1664
“…who ever
knew Truth put to
the wors, in a free
and open
combat”
1608-1674
Two Treatises on
Government
John Locke
1690
1. Written constitution to
define limits of
government by those
creating the new
government
2. “Natural rights” are not
all surrendered to the
government
1632-1704
The trial of John Peter Zenger
(1734)
1. Jury decides the case (nullification)
2. Truth is a defense in a libel case
The Constitution of the United States (1789)
Article I, Section 8
“To establish Post Offices and Post roads.”
“To promote the Progress of Science and the
useful Arts, by securing for Limited Times to
Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.”
The Bill of Rights (ratified 1792)
Amendment 1
“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof; or abridgingthe
freedom of speech, of the press; or the right
of the people peaceably to assemble, and to
petition the Government for a redress of
grievances.”
The Bill of Rights (ratified 1792)
Amendment 6
“In all criminal prosecutions, the accused
shall enjoy the right to speedy and public
trial by an impartial jury of the State and
district wherein the crime shall have been
committed...”
Philosophies of Free Speech and
Press
I. Individual Fulfillment (Thomas Emerson)
II. The attainment of truth: the marketplace
of ideas (Oliver Wendell Holmes)
III. Governance (Alexander Meiklejohn)
IV. Watchdog (Vincent Blasi)
V. Agent of Peaceful Change
VI. Access (Jerome Barron)
Hierarchy of Protected Expression
Protected
Political Speech (Meiklejohn)
Advertising (since 1976)
Indecent Speech (Seven Dirty Words)
Obscenity,False Advertising,
Fighting Words
No protection
QUESTION: HOW DOES ONE KNOW THE
INTENT OF THE “FRAMERS?”
The nature of the guarantee
Liberty v. Government power:
Check on state actions under the 14th
Amendment
Expression v. Conduct
Is entertainment afforded 1st Amendment
protections?
Symbolic Speech (expressive conduct)
Texas v. Johnson (1989)
R.A.V. v. City of St. Paul (1992)
Suspect Restrictions
Prior Restraint
Near v. Minnesota (1931)
New York Times Co. v. U.S. (1971)
Hazelwood School District v. Kuhlmeier (1988)
Contract and Administrative Law (Marchetti and Snepp)
Licensing
Watchtower Bible and Tract Society of New York v. Village of Stratton (2002)
Time, Place, and Manner Restrictions
Content Neutral?
Compelled Speech
Media Access Laws: Tornillo v. Miami Herald Pub. Co. (1973)
Punishment After The Fact
Speech Codes
Hate Speech: R.A.V. v. St. Paul (1992)
Financial Burdens
Taxes: Grosjean v. American Press Co. (1936)