American Constitutionalism in Historical Perspective (packet)

The System of Free Expression (d/n apply to action)

1. 
   Background
   
   1. 
      Unprotected speech: no free speech analysis
      
      1. 
         Fighting words- narrowed
         
      2. 
         Defamation-only individual libel
         
      3. 
         Obscenity- narrowed: pushed lots of material into protected domain & created regulatory probs
         
      4. 
         Advertising- narrowed to vanishing point
         
   2. 
      Protected speech: D/n allow state selectivity of what counts as worthwhile speech (anti-censorship principle- c/n have view point driven selections) EXCEPT when nuclear clear & present danger. But can have neutral time, place and manner regulations which are NECESSARY for free speech
      
      1. 
         People are autonomous moral agents must have rt to speak and listen
         
      2. 
         Cohen: what was traditionally a TPM reg was really content-based (c/n censor out dissenting vocab)
         
      3. 
         Public forum- prohibition vs. regulation
         
         1. 
            Prohibition- absolutely prohibited
            
         2. 
            Regulation, ct tends to be more deferential (Mini Theatres, Renton, Denver Area Telecom)
            
      4. 
         Private Forum Case: Pacifica
         
   3. 
      Why we need freedom of speech and body.
      
      1. 
         Religious ground: constitution committed to radical freedom of conscience to shape religious identity
         
      2. 
         Scientific foundationism: interest in criticizing traditions that founders regarded as corrupt b/c tainted by theocracy. Mind must be open to experience (freedom of rationl scientific mind) ex: Galileo jailed.
         
      3. 
         late 18^th C idea of mind/body dualism: we are more our mind then our bodies, so is esp impt to have freedom of mind (Locke)
         
      4. 
         Led to expansion of these liberties. Constit privacy has involved expanding these values into action.
         
2. 
   Political Speech and Subversive Advocacy (pp. 1022-1076)
   
   1. 
      Background: judiciary began to enforce the 1^st A to protect free speech after WWI. Result of overlapping consensus b/w Holmes & Brandeis. Derived from religious free exercise, the most protected form of speech
      
      1.