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Freedom of Speech: Its Constitutional Scope and Function
| Article
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19266 |
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Section : |
MODERN THOUGHT
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| Issue
Date : |
7 / 1991 |
4,979 Words |
| Author
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Mortan A. Kaplan
Morton A. Kaplan is Distinguished Service Professor of
Political Science at the University of Chicago and editor and
publisher of The World & I. |
Congress shall make no law ... abridging the freedom of speech, or of the press.--Article 1, U.S. Constitution
Freedom of speech is one of the most precious guarantees of a democratic form of government. It protects our right to inform and convince others of our views. Yet the Supreme Court has legislated on this issue in ways that would be difficult to defend.
Justice Hugo Black properly was in a very small minority when he claimed for this freedom the absolute status that the literal language of the First Amendment suggests. No document can be understood in the absence of canons of interpretation. Apart from his literalist fallacy, Justice Black failed to take into account the way that the Constitution as a corporate entity affects its individual provisions.
Others argue that the Court is insufficiently restrictive. They may contend, for example, that speech with attacks minority groups should not be permitted, or that the Nazis should not have been permitted to march in Skokie.
Where should the line be drawn with respect to restrictions on speech and press, either constitutionally or as a matter of public policy? How can a line be drawn that does not call into question those aspects of freedom of speech and of the press that play such an important role in government, science, and life in a free society?
The short answer is that both the drawing of line that permits restrictions on speech and press and a failure to draw lines constitute dangers. When lines are drawn, it becomes easy to extend them. There have been examples in which documentary positions eventually came to mean the opposite of their original interpretation. On the other hand, no generalization can fit all cases. The "exception that proves the rule" responds precisely to this point. Failure to carve out exceptions in cases in which circumstances differ greatly from general expectation eventually will lead to contempt for the rule or the failure of the institutions and freedoms the First Amendment is intended to support.
Let me begin by discussing speech and the written word and only later consider what the Court has called symbolic action--that is, actions designed to influence the opinions of others. Although the Court probably operated properly by extending protection to actions designed to influence opinion, the original intention no doubt was directed to speech
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