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Free Speech

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发表于 2/6/2018 17:34:31 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 2/6/2018 18:56 编辑

      What value does free speech serve may well determine the extent of constitutional protection to be given to such forms of expression as literature, art, science, commercial speech, and speech related to the political process.
      Professor Emerson, probably the leading modern theorist of free speech, has recognized four separate values served by the first amendment's protection of expression:
(1) "assuring individual self-fulfillment;"
(2) "advancing knowledge and discovering truth;"
(3) "providing for participation in decisionmaking by all members of society;"
(4) "achieving a more adaptable and hence a more stable community,... maintaining the precarious balance between healthy cleavage and necessary consensus." [1]
.      Professor Meikle John spoke eloquently of the value of free speech to the political process.[2]Judge Bork, now the leading exponent of the government-process school of thought, has concluded that the sole purpose served by the constitutional guarantee is to aid the political process, and that absolutely no other form of expression can logically be considered to fall within it.[3]

Other scholars have culled from the values suggested by Emer-
son, concluding either that the first amendment is designed to foster
or protect only one of them, or that it protects a hierarchy of these
different values, with the constitutional protection given to various
forms of expression to be adjusted accordingly. Professor Meikle-
john, for example, spoke eloquently of the value of free speech to
the political process.[4] In order to prevent the protection of such
speech from being reduced to a matter of "proximity and degree,"[5]
he urged exclusion from the first amendment guarantee of all speech
that did not relate to this self-government value."[6]
      Although Meiklejohn in later years appeared to soften the
rigidity of his lines of demarcation by effectively extending his
doctrine-in a somewhat less than persuasive manner-to many forms
of apparently non-political speech,[7] other commentators have
adopted his initial premise and kept within its logical limits. Judge
Bork, now the leading exponent of the government-process school
of thought, has concluded that the sole purpose served by the con-
stitutional guarantee is to aid the political process, and that abso-
lutely no other form of expression can logically be considered to
fall within it.[8] Professor Blasi, although not rejecting all other
asserted values of free expression, has urged recognition of what he
labels the "checking value" as the primary purpose of the first
amendment.[9] Under this analysis, speech relating to official mis-
conduct would receive the greatest degree of constitutional protec-
tion.[10] Other commentators have selected various forms of an
"individual development" model as the touchstone of first amend-
ment protection,[11] and have structured their constitutional inter-
pretation accordingly. Finally, some scholars, of course, are com-
mitted to the "marketplace-of-ideas" approach (long associated with
the famous dissent of Justice Holmes in A brains v. United States[12],
which posits that the primary function of free speech is as a catalyst
to the discovery of truth.[13]




[1] See T. Emerson, The System OF Freedom of Expression 15 (1970)at 6-7("The outstanding fact about the First Amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases.")
[2] See A. ME.KLEJOHN, Political Freedom(1960) (expanded version of Meiklejohn's Free Speech (1948)).
[3] Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971); see also Bevier, The First Amendment and Political Speech: An Inquiry Into the Substance and Limits of Principle, 30 STAN. L. Rev. 299 (1978).
[4] See A. ME.KLEJOHN, Political Freedom(1960) (expanded version of Meiklejobn's Free Speech (1948)).

[5] id. 55.

[6] See infra notes 28-32 and accompanying text.

[7] Meildejobn, The First Amendment Is an Absolute, 1961 Sup. CT. Rev. 245; see infra text accompanying notes 32-33.

[8] Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971); see also Bevier, The First Amendment and Political Speech: An Inquiry Into the Substance and Limits of Principle, 30 STAN. L. Rev. 299 (1978).

[9] Blasi, supra note 2.

[10] See infra notes 69-74 & 76 and accompanying text.

[11] Baker, Scope of the First Amendment Freedom of Speech, 25 U.C.L.A. L. Rev. 964 (1978) ("liberty"); Scanlon, A Theory of Freedom of Expression, 1 Prmo. & Pun. Aff. 204 (1972) ("autonomy").

[12] 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

[13] See infra text accompanying notes 88-90.
     is One authority interprets "autonomy" to mean:
     making one's own choices. A person is not autonomous whose choices are
     dictated 'from outside' at gunpoint or, perhaps, through hypnosis ...
     On the other hand, full deliberative rationality is not required for autonomy.
     Spontaneous or ill-considered decisions can be just as much my decisions,
     and that is the touchstone as I understand autonomy.
L. Cnocmnn, Posriw Lmiwr'y 114 (1980).

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