FREEDOM OF SPEECH AND OF THE PRESS(OLNotes)

FREEDOM OF SPEECH AND OF THE PRESS(OLNotes) - VIII. A. 1....

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VIII. FREEDOM OF SPEECH AND OF THE PRESS A. Introduction: Freedom of Speech (FOS) 1. Rationales for the free speech guarantee a. There’s no conclusive ruling from SC, and no articulated “broad rationale” for free speech. i. Functional v. Intrinsic: Adds to Confusion: There is no formal endorsement of a particular view of free speech. (a) Many of these views are modern views. Arguably, the Framers had political speech in mind when 1 ST AmD was written. (1) Idea of FOS Important in terms of substantive rights and equal protection in the political process. (i) Libs and cons justices tend to agree protection of political speech is core of 1 st Amd. ii. Libs tend to see an intrinsic value: (a) It’s all @ self realization and personal autonomy iii. Cons: Freedom of speech based in a functional value (a) Historically, the emphasis of the first amendment was to promote political speech. (1) Cons: the democratic process should supersede the judicial process. (i) Judiciary shouldn’t 2 nd guess public. b. Theories as to why we hold FOS as fundamental i. Political Speech theory – Alexander Maikejohn. (a) 1 st AMD all about political speech. (1) Conceded that it was also about things that would shape the world view of the voters like serious literature and books (i) Note : If the 1 st amd isn’t just about political speech, does political speech get more protection than other kinds of speech? (1) Con s would say yes and the libs no. ii. Marketplace of ideas theory : (a) Most frequently used by judges. (1)
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FREEDOM OF SPEECH AND OF THE PRESS(OLNotes) - VIII. A. 1....

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