Outline No. 2 -- The First Amendment

Congress shall make no law respecting an establishment  of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 

I Why protect speech?

Values of Free Speech

1. Self-governance: Voting and communication about education, philosophy, science, literature, arts, public issues -- all make a more intelligent voter.

2. Self-fulfillment: to realize our character and potential as human beings; enables individuals to express themselves, create and identity--and, in the process perhaps, find kindred spirits

3. Safety valve: Dissidents can work their ideas into the social fabric without resorting to violent underground action.

4. Marketplace of Ideas: A thought must be powerful enough to get itself accepted among the competition in the market. Even "wrong" opinions help present a clearer perception and livelier impression of the truth.

II How is Speech Protected?

To protect speech against government action, courts look into:

1. Content regulations: Court has a bias against them. (Laws should be "content-neutral," not "content-based" or "viewpoint-based.")

But Time, Place & Manner regulations may be OK

2. Strict Scrutiny: The government regulation on speech must be necessary to serve a compelling government interest and the regulation must be narrowly tailored to serve the government interest.

Narrowly Tailored: Not overbroad or vague

Vagueness: law written so unclearly that persons "of common intelligence must necessarily guess at its meaning and differs as to its application."

Overbreadth: prohibits too much protected speech.

3. Prior Restraint: when government prevents publication before the fact. Not uncommon for speech to be penalized after publication, but prior restraint very rarely ruled constitutional. Might be permissible in wartime, to bar obstruction of military recruitment, announcing number and location of troops, or sailing dates of troop transports.

III Hierarchy of Protected Expression

1. Most valued is Political and Social Expression

including religion and cultural issues, labor, race, health, education

2. Second-class speech gets less protection

Factual advertising, indecency

3. Unprotected speech : obscenity, false advertising, fighting words

The following isn't entirely true, but it does point out the inconsistencies of what Americans will allow under their laws:

"Murder is a crime

Describing murder is not

Sex is not a crime

Describing sex is."