Franklyn Haiman
Speech and Law in a Free Society
The Contours of the Problem (Ch. #1)
A) While the first amendment guarantees the freedom of speech, there is no consensus on what the amendment means or includes/excludes.
B) He argues that the question we are faced with is not whether there should be limits on free speech, but where do we draw the line (4)
C) The problem arises from the complexity of society and the many competing interests, but the problem is more difficult because of the lack of consensus in our society concerning the basis purposes and values underlying the First Amendment.² (5)
D) He gives 6 premises that are the basis of this book (6-7):
1) Social order is a means to maximizing individual liberty and security.
2) Symbolic behavior is one of the most fundamental ways in which human beings express and fulfill themselves.
3) The human condition is not predetermined.
4) Every informed person is ultimately the best judge of his or her own interests.
5) Intellectual and emotional maturity are not exclusively, and often not even primarily, a function of chronological age.
6) Whether or not one believes, theoretically, in the existence of absolute truth, a democracy presumes that we can never be certain it has been attained by any fallible man.
E) He provides definitions for the 4 most problematic words in the first amendment: Congress, assemble, press and speech.
1) Congress--It has been assumes that this term applies to all branches of the federal government; it did not apply to the states until after the 14th amendment. (8)
2) Assemble--He defines as the collective effort by groups of people who share common problems or who advocate common courses of action. (9)
3) Press-- The main question he seeks to answer is whether or not freedom of the press is separate from the freedom of speech.
A) Experts Levy and Nimmer agree that the terms were used interchangeably by the founders. (10)
B) Supreme Court Justice Potter Stewart has suggested an alternate interpretation. He contends that the Founders were attempting to establish the press as an institution to act as a fourth check on the government. (12)
C) Chief Justice Warren Burger stated that the freedom of the press was a fundamental personal right open to anyone who decides to use it. (12)
D) Problems have arose in cases where the press and speech clauses have been weighted against each other.
E) Haiman concludes that Justice Stewart's distinction is of little value and causes more confusion that eliminates. A bit of Constitutional redundancy, I think, is much to be preferred. Identical twins may serve us better that sibling rivals. (15)
F) Speech-- He devotes the entire next chapter to defining this concept.
2) What is speech? Ch. #2
A) he begins this chapter by discussing some of the perspectives advanced by other scholars and judges such as: Blackmun-Burger-Black, Meiklejohn and Chaffee.
B) The basis of his argument for defining speech comes from the perspective of a communication scholar.
C) He begins to make his argument for what speech with a refutation of Chaffee's distinction between words and acts. Haiman writes that this distinction show a failure to appreciate the nature of symbols and of communication (20).
D) Next, he attacks Emerson's distinction between expression and action. He contends that these distinctions creates more problems that they solve and the leave the First Amendment on a most uncertain foundation(24). The problem with this interpretatio n is that calling words action does not change their symbolic nature (25). Emerson tries to define 4 categories which make words actions based on their context, but Haiman argues the only difference between speech and action is that one is symbolic and the other is nonsymbolic. So, if symbolic behavior ever needs to be limited it should be clearly due to contextual constraints, not because words can be made actions through redefinition. (25)
E) When does nonverbal communication receive First Amendment protection?
1) It should be accepted that all communication communicates.
2) He also assumes that the First Amendment does not protect an infinite range of conduct. (31)
3) He divides human behavior into 3 categories.
A) Some conduct is completely symbolic. This would include words, gestures, pictures--anything which represents something else (31).
B) Conduct people engage in entirely or primarily for its won sake. This is conduct which fulfills some human need. this category is not the focus of this book. (32)
C) Conduct from the second category which is intended to mean more than the act itself. This meaning can come from the actor, perceiver, or observer (33).
D) Conclusions--most behavior from the first category would be considered protected speech, unless the context justified restrain. The third category is most problematic. The main question for protection of behavior in this category is--whether th e nonsymbolic element... predominant or secondary in intent or effect, is sufficiently harmful to place the total conduct beyond any possible First Amendment consideration. (34-35)
4) He does argue that behavior that physically harms other people or their property is sufficient reason to limit such behavior. (36)
5) It is the symbolism in the actor's behavior and not the response of the audience that should bring First Amendment considerations into place...It justifications are to be found for restraining communicative behavior they must be found in the context and in the effects of that communication upon other fundamental interests. (38)
3) Contribution to Free Speech Theory
Dr. Haiman attempts to look at recent Court decisions and contemporary experts to find some consensus and understanding of what free speech means in our present society. His perspective is unique because he approaches the subject from the perspective of a communication scholar. He also tries to bring some historical perspective for understanding the First Amendment. Smith argues this book has opened up the debate on interpretations of the First Amendment and furthermore, this book has extended the line between the present and the probable, expanding the parameters of the possible and opening the way for others to go further. (106)
4) Bibliography
Haiman, Franklyn. Speech and Law in a Free Society. Chicago: University of Chicago Press, 1981.
Smith, Stephen A. Of Sovereign Assumptions, Delegated Powers, and an Absolutist View of Freedom of Expression. Free Speech Yearbook. 27 (1989):106-114.