Freedom of Speech

This book synthesizes the core jurisprudence of the First Amendment's protection of freedom of speech from both an historical and a doctrinal perspective. The treatment is concise and straightforward. The book was written to be helpful to students and lawyers and to be accessible to a general readership, while remaining of interest to teachers and scholars of the First Amendment. The book opens with a brief history of freedom of speech in the United States, beginning with the English origins of the concept and concluding on the eve of World War I. Coverage includes the English licensing system and the limited understanding of free expression at English common law, the American colonial experience (with special emphasis on the trial of John Peter Zenger), the adoption of the First Amendment, the Sedition Act of 1798, the free speech controversies spawned by abolitionists during the antebellum period, Lincoln's approach to free speech during the Civil War, the Comstock Era, and finally, the "free speech fights" instigated by radical labor union organizers at the beginning of the Twentieth Century. The author depicts the years from the early national period until World War I as the "Dark Age" of free speech jurisprudence in the United States. The book then analyzes the leading theoretical justifications for affording special constitutional protection to freedom of speech. These justifications include arguments that freedom of speech is special because it is a necessary condition of self-government, because it facilitates a societal search for truth, and because it is an essential attribute of individual autonomy. These "positive" accounts are supplemented by a "negative" justification for protecting freedom of speech. In this view, official censorship is an especially dangerous evil that is to be prevented because of the societal dangers that it poses. An unusual feature of the book's analysis of the theoretical justifications for special free speech protection is the author's connection of these traditional accounts with the theory and practice of classical Athenian democracy. After this theoretical interlude, the book returns to history, tracing the evolution of subversive advocacy doctrine, which, the author argues, provides the central narrative of freedom of speech in the United States. The discussion begins with the Espionage Act prosecutions of World War I, continues through the "Red Scares" following the two world wars of the last century, and concludes with a critique of contemporary subversive advocacy doctrine. In a brief, transitional discussion, the book then constructs what the author describes as the "architecture of free speech analysis" by interweaving the categorization principle and the content distinction principle, doctrines that the author presents as the "central mediating principles of free speech jurisprudence." Having traced the historical development of and the theoretical underpinnings of free speech protection in the United States, as well as the basic framework of free speech analysis, the book turns to the development of the core doctrines of the First Amendment. It begins by analyzing what the author calls the "codified First Amendment," describing the Supreme Court's variation of free speech protection according to the type of speech involved. This discussion includes analyses of the various kinds of provocative speech (including hostile audiences, fighting words, and hate speech), sexual expression (including obscenity, non-obscene sexual expression, and child pornography), commercial advertising, and symbolic conduct. The book concludes with a discussion of the "procedural First Amendment," that is, the Supreme Court's variation of free speech protection according to the type of speech restriction involved. This discussion includes analyses of the doctrines of the public forum, prior restraint, overbreadth, and vagueness. Keith Werhan's Freedom of Speech is No. 12 in the series of Reference Guides to the United States Constitution, edited by Jack Stark. It includes a Forward by Judge Jacques L. Wiener, Jr., of the United States Court of Appeals for the Fifth Circuit. Keith Werhan is the Geoffrey C. Bible & Murray H. Bring Professor of Constitutional Law at Tulane Law School.