The Quality of First Amendment Speech
Hastings Communications and Entertainment Law Journal, Vol. 20, No. 2, Winter 1998
Posted: 5 Oct 1998
One of the core axioms of First Amendment jurisprudence is that the quality of speech, its goodness or badness from a literary, artistic, or aesthetic perspective, or its effectiveness in communicating to an audience should bear no relationship to its protection under the First Amendment. This Article analyzes the Supreme Court's First Amendment doctrine across a wide range of fields: political speech, obscenity, commercial advertising, misrepresentation, entertainment, literature and the arts, and humor. The author demonstrates that the Court regularly, although implicitly and perhaps unconsciously, employs various qualitative criteria in determining whether and to what extent speech is protected under the First Amendment. The author argues that any First Amendment regime that falls short of absolute protection for all communication will inescapably broach questions of quality. Thus, the important issue is not whether determinations of quality should be relevant to the First Amendment, but instead when, how, to what extent, in what form, and with what justification quality should be considered. The author concludes that determinations of quality are relevant to the First Amendment, but, until that fact is acknowledged, the prevailing notion that quality is irrelevant hinders the development of a systematic and speech-sensitive approach to identifying exactly when and why quality should be a relevant consideration.
Note: This is a description of the article and is not the actual abstract.
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