From: kadie@eff.org (Carl M. Kadie)
Subject: Minireview: _Free speech in an open society_ by Rodney A. Smolla
Originator: kadie@eff.org
Organization: The Electronic Frontier Foundation
Date: Tue, 29 Sep 1992 18:48:10 GMT


DISCLAIMER FOR ED N. -- This is a summary/paraphrase of a book. You
can flame the author for his ideas, you can flame me for
misrepresenting the author's ideas, but please don't flame me for the
author's ideas.

     Smolla, Rodney A. 
     Free speech in an open society / by Rodney A. Smolla. 1st ed. New
         York : Knopf : Distributed by Random House, 1992. 
     xii, 429 p. ; 25 cm. 
     Includes bibliographical references (p. 369-414) and index. 
     ISBN  0679407278 : $$27.50 ($$34.50 Can.) 
       1. Freedom of speech--United States.   2. Freedom of speech  I. Title.  
     ocm23-768570  

Minireview:

One-line: New, up to date, and has lots of references to relevent court cases. 

Says that history doesn't provide a comprehensive theory of free
speech, that mere balancing of competing interest is not enough.

Gives six suggested rules for speech rules in the general marketplace
of ideas:

1. Neutrality - Government may not "pick and choose" among ideas, but
must always be viewpoint-neutral"

2. Emotion - Speech does not forfeit the protection that it would
otherwise enjoy merely because it is laced with passion or vulgairty.

3. Symbolism - The First Amendment includes all expressive conduct

4. Harm -- physical (e.g. solicitation of murder or arson),
        relational (e.g. libel, false advertising, copyright infringement,
                    unauthorized revelation of perivate personal information)
        reactive harm (e.g. infliction of emotional distress, obscenity)

   The government has the strongest case for regulating "physical". A
   strong, but not as strong case, for regulating "relational". No good
   case for regulating "reactive".

5. Causation - speech is required to be in a close causal nexus with harm
before it can be penalized

6. Precision - prohibitions must be the least restrive means and must
   very clear.

Includes chapters on 

  hate speech -- "In a just soceity, reason and tolerance must triumph
  over prejudice and hate. But that triump is best achived thought
  education, no coerecion. Tolerance shouild be a dominant voice in
  the markeplace of ideas, but it should not preempt that marketplace."

  public funding of the arts, education, and other forms of public
  speech -- says that only neutral, precise, relevent restrictions
  should be allowed.

  political speech -- "Limits on political contributions and the
  public financing of elections are reforms that do not offend the
  First Amendment. But limit on expenditure do.

  The Noriega Tapes and the Gulf War

  New Technologies -- e.g. TV, cable -- indecent or obscene material should
   not be regulated at all because it is "immoral". Any regulations
   should be aimed only at protecting childern and "captive" adult
   audiences.

  Toward an International Marketplace of ideas

Score: 9 of 10


- Carl
-- 
Carl Kadie -- I do not represent EFF; this is just me.
 =kadie@eff.org, kadie@cs.uiuc.edu =
Newsgroups: alt.censorship,alt.politics.elections