Another Worthy Tradition: How the Free Speech Curriculum Ignores Electronic Media and Distorts Free Speech Doctrine
65 Pages Posted: 21 Apr 2005
This Article argues that there are two traditions in American free speech scholarship that result in two opposing speech doctrines, but that American law students are exposed to only one of them. Of the two traditions, one derives its doctrine from the most significant media in society - such as broadcast, cable, the internet, and other electronic media. The other derives its doctrine from society's more marginal communications media - such as leaflets, pickets, soap-boxes, and burning flags. Yet, for no good historical reason, the doctrine derived from burning flags and other marginal media takes center stage in law school casebooks, while the doctrine derived from significant media is ignored and harshly criticized.
The two speech doctrines are not identical. They would lead to different results in many significant speech controversies, especially those involving speech through current and evolving electronic media. The two doctrines also have different animating concerns. The major concern of the doctrine derived from electronic media is a distrust of government action where the action diminishes the diversity of viewpoints and the wide distribution of speech power. The animating concern of the other doctrine, however, is a distrust of any government action directed at speech.
This Article demonstrates that constitutional and First Amendment case-books and treatises largely ignore electronic media cases even though electronic media are Americans' primary speech media, and even though, in practice, speech doctrine derives from such cases. These books devote very little space to broadcast, cable, the internet, and the telephone, while focusing most of their attention on less significant media like burning flags and soap-boxes. Moreover, in the brief space that these law books devote to electronic media cases, they imply the cases were wrongly decided and they privilege the decisions on insignificant media. In the process, law students' books push one conception of free speech doctrine, derived from marginal media, at the expense of another, derived from society's most widely used media.
Keywords: First Amendment, Free Speech, Law Teaching, Electronic Media, Red Lion
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