Freedom of Speech · Module 1
Free Speech Values; What Is Speech?
Why protect speech at all — truth, self-governance, autonomy, tolerance, checking — and the prior question every doctrine presupposes: what counts as speech? O'Brien governs the conduct half, Spence asks when conduct is speech, and Johnson shows the two colliding over a burning flag.
Assigned reading
Chemerinsky, Constitutional Law (7th ed. 2023) — 1057–64, 1319–28.
The casebook is the assigned text for this course. This page is the map: what the Module is doing, in what order, and what goes with it.
Topics
Why we protect speech — truth, self-governance, autonomy, tolerance, checking. The free speech doctrines in outline. Speech versus conduct; symbolic and expressive conduct.
Reading list
4 of 4 readings published
- Note Why Protect Speech?
- Opinion United States v. O'Brien 391 U.S. 367 (1968)
- Opinion Spence v. Washington 418 U.S. 405 (1974)
- Opinion Texas v. Johnson 491 U.S. 397 (1989)
Classroom visuals
Discussion
Meta Settled. What Did the States Get That a Statute Could Not? on Canvas — sign in required
This module in Canvas
Modules · Quizzes · Discussion boards · Files and recordings
How to read this list
A case named without a marker is assigned as an opinion and is to be read in its entirety. Opinion (edited) means the Professor has cut it for length; the text on this site is the assigned text. Note means the case is not assigned as an opinion at all — its holding, its facts to the extent they matter, and its place in the doctrinal line are given in a note written for this course, and you are responsible for that note exactly as you are responsible for an assigned opinion. Most modules close with a Current case, a recent decision chosen because it shows the doctrine you have just read being applied at its live edge; current cases are assigned as opinions. You are responsible for all assigned required materials, including the notes, questions, problems and commentary that accompany the cases, whether or not we discuss them in class.
Notes
Why protect speech at all?
Before any doctrine, an inventory of reasons — because which reason you privilege decides cases. The marketplace of ideas (Holmes, dissenting in Abrams, 1919): truth is what survives competition among ideas, so the remedy for bad speech is more speech, and government intervention corrupts the test. Its weakness: markets fail, and the metaphor assumes buyers who want truth. Democratic self-governance (Meiklejohn): the First Amendment protects the political conversation sovereign citizens need; what matters is not that everyone shall speak, but that everything worth saying shall be said. Its weakness: it grades speech by political utility and struggles with art, science, and profanity. Autonomy and self-realization: speaking and hearing are constitutive of personhood, protected for the speaker’s own sake regardless of social payoff. Its weakness: it proves too much — most regulable conduct is also self-expressive. Checking value (Blasi): free expression as structural insurance against official abuse. Tolerance and self-restraint (Bollinger): protecting extremist speech trains a society in the discipline democracy requires. No case adopts one theory cleanly; most opinions cocktail them. As you read this module, tag each holding with the theory doing the real work — and notice how often the rhetoric of the marketplace decorates a result the autonomy theory actually explains.