66 Pages Posted: 8 Sep 2005 Last revised: 7 Nov 2010
Date Written: November 5, 2010
The constitutional calculus in freedom of expression analysis is the balance between the value of the expression and the harm that will result if the expression is permitted to go forward. A previous article described six factors affecting the value of an expression. This article describes four factors that courts take into account in assessing the harm that the government is seeking to prevent when it suppresses expression. These four factors are the speaker's state of mind, the likelihood that harm will result, the nature of the harm, and the gravity of the harm. The Supreme Court is increasingly turning to an empirical, fact-based assessment of these four factors in order the measure the weight of the governmental interest supporting laws that infringe upon freedom of expression.
Keywords: First amendment, freedom of expression
JEL Classification: K19
Suggested Citation: Suggested Citation
Huhn, Wilson Ray, Scienter, Causation, and Harm in Freedom of Expression Analysis: The Right Hand Side of the Constitutional Calculus (November 5, 2010). William & Mary Bill of Rights Journal, Vol. 13, pp. 125-203, October 2004; U of Akron Legal Studies Research Paper No. 05-19. Available at SSRN: https://ssrn.com/abstract=710802