Freedom of Speech II
THE POLITICS OF LAW, David Kairys, ed., 3d. ed., Basic Books, 1998
15 Pages Posted: 24 May 2005
This chapter, a revision 16 years later of the original chapter designated in SSRN as Freedom of Speech I, summarizes the history of free speech in the U.S., 1791 to 1940 and updates the discussion of the exaggerated reality and the ideological uses of free speech from the earlier version. The focus of Freedom of Speech II is on contemporary free speech issues. A set of legal doctrines and rules that expanded and protected speech rights emerged from the 1930s and, after a regression in the 1950s, resumed in the 1960s and early 1970s, when the civil rights and antiwar movements demanded and received enhancement and heightened enforcement of speech rights. These doctrines and rules constitute what the chapter calls the "liberal paradigm," which has been contracted and retrenched in the conservative period starting in the mid-1970s. The retrenchment has been principally characterized by new limits on speech in public places, withdrawal from the "content barrier," rejection of claims to access to the mass media that had been recognized in the liberal paradigm, and cutbacks in voting and democracy rights, amounting to a dismantling of the basic system of free speech. In the same period, however, some speech rights were expanded - for example, campaign finances gained constitutional status as protected speech, and corporations were granted new speech rights. Overall, in the last few decades, the Supreme Court has narrowed and restricted the speech rights available to people of ordinary means, enlarged the speech rights available to wealthy people and corporations, and erected a free-speech barrier to public access to the media and to important electoral, economic and social reforms.
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