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What Speech Should Be Outside of Freedom of Expression?

65 Pages Posted: 2 Jan 2011 Last revised: 22 Feb 2013

Xinglong Cao

City College of Zhejiang University

Date Written: November 2, 2010


Common law permits restraint of speech for its noncommunicative ill-effects, and turns on green lights for so-called 'content-neutral' regulations and prioritizes the bigger value of governmental interest v. freedom of expression, meanwhile ignores the fact that in most cases, speech-restraining regulations are always 'content-based' in some degree, and that the ridded evil aftermath of a speech is usually related to its communicative idea, and that the comparison of speech freedom and restraining interest is often unfeasible. Common law also recognizes that idea other than fact may not be reprehended as false or wrong and then inhibited because the idea market has a democratic mechanism to pan out the truth; but some ideas do in actuality damage others when no such an ideal idea market is available or the market becomes dysfunctional. The plain text of the First Amendment does not lift speech freedom over other liberties; right to free speech should refrain from encroaching into other rights, and vice versa, all these other rights are equally important to maintain a social democracy for free speech. From these perspectives, federal election law is found to probably contain false idea if it entails too much evil-effect such as distortion, corruption and inequality. So to create a calm 'fair speech space' in election as in other governmental operations as a fair arena for election candidates, is probably a good way to countervail the ill-effect of the unperfect idea market.

Keywords: First Amendment, free, expression, speech, idea, Federal, election, campaign, equal, government, corruption

Suggested Citation

Cao, Xinglong, What Speech Should Be Outside of Freedom of Expression? (November 2, 2010). Available at SSRN: or

Xinglong Cao (Contact Author)

City College of Zhejiang University ( email )

Gongsu District
Hangzhou, Zhejiang 310058

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