American Constitutionalism in Historical Perspective (packet)

Amendment I: “Congress shall make no law … abridging the freedom of speech, or of the press.”

Prior Restraints: prohibited licensing requirements for printing presses. (Milton).

Alien & Sedition Act: learned from this oppressive act that the core of free speech doctrine is protecting subversive political speech. Derived from idea of absolute religious freedom

Theories of free speech

1. 
   Political Process view: Meiklejohn, Political Freedom, 1965: political speech is core of free speech, should be absolutist about protection in this area. Free speech fundamental to sovereignty, gov’t s/n have power to regulate this area on behalf of the people, strips them of freedom.
   
   1. 
      Absolutist (Black & Douglas): when in core of free speech, no trade offs allowed. Skeptical of categories of unprotected speech (libel, obscenity, commercial speech, etc). TPM restrictions OK as long as not content based. Narrowly construe clear and present danger—Brandenburg.
      
   2. 
      Balancers (Frankfurter & Holmes): focus on values and allow trade offs in fundamental areas of free speech. Create unprotected categories of speech (libel, defamation, obscenity, commercial speech). TPM restrictions enhance free speech values by allowing everyone to be heard. Free speech should yield to clear and present danger
      
2. 
   Truth-seeking view: John Stuart Mill, On Liberty, 1859: utilitarian view: advocates robust rt of personal autonomy. If one person objects, even if the rest of society disagrees, he should be heard. Interests are developmental and emerge through argument. This enables the truth to be discovered, winnowing the true from the false. Only by fighting views rationally do we develop our rational faculties. Only way to come to understanding of our true beliefs both morally and religiously. Followed by Holmes’ Abrams dissent.
   
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