THE ENCYCLOPEDIA OF AMERICAN CIVIL LIBERTIES, Routledge Reference Taylor & Francis Group, Forthcoming
16 Pages Posted: 17 Sep 2005
Within the United States, free speech is perhaps the preeminent right among all of the rights included in the Bill of Rights. The term free speech is, however, a popular misnomer for a concept more properly identified under the heading of freedom of expression. Free expression, in turn, represents an extremely complex, multidimensional construct whose popular acceptance, under the label of free speech, masks a significant level of controversy and conceptual confusion. With the exception of those few commentators and advocates who, like Justice Hugo Black, hold an absolutist view of free expression (i.e. that the constitution's prohibition on laws limiting free speech means that no legal restrictions can be imposed), the difficulty within the legal concept of freedom of expression resides in determining how to draw the line between protected and non-protected expression.
In determining how to protect expression, the state will have to consider the nature and function of expression in relation to the values held by that society. That is to say, determining what types of expression should be protected depends not only upon the purpose for protecting free expression in a liberal democracy (i.e. why), it also depends upon a proper understanding of the nature of free expression (i.e. what it is and how it functions). These constructs are so interrelated that one could start with any of the three (i.e. why, what or how). Here, we will begin by considering what constitutes expression and how it functions. This is a descriptive task based on the nature of expression. We then explore why society should protect expression: what are the social values advanced by free expression. We then consider how these three factors relate in developing our ideas on regulating expression, along with certain pragmatic limitations imposed by the nature of regulating expression, and, finally, we consider what forms of expression ought to be protected to advance those social values.
Keywords: First Amendment, Free Speech
JEL Classification: K19, K40
Suggested Citation: Suggested Citation
Guinn, David E., Philosophy and Theory of Freedom of Expression. THE ENCYCLOPEDIA OF AMERICAN CIVIL LIBERTIES, Routledge Reference Taylor & Francis Group, Forthcoming. Available at SSRN: https://ssrn.com/abstract=801344