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Speech Stories: How Free Can Speech Be?

Randall P. Bezanson
Copyright Date: 1998
Published by: NYU Press
Pages: 232
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  • Book Info
    Speech Stories
    Book Description:

    When we talk about what "freedom of speech" means in America, the discussion almost always centers on freedom rather than speech. Taking for granted that speech is an unambiguous and stable category, we move to considering how much freedom speech should enjoy. But, as Randall Bezanson demonstrates in Speech Stories, speech is a much more complicated and dynamic notion than we often assume. In an age of rapidly accelerated changes in discourse combined with new technologies of communication, the boundaries and substance of what we traditionally deem speech are being reconfigured in novel and confusing ways. In order to spark thought, discussion, and debate about these complexities and ambiguities, Bezanson probes the "stories" behind seven controversial free speech cases decided by the Supreme Court. These stories touch upon the most controversial and significant of contemporary first amendment issues: government restrictions on hate speech and obscene and indecent speech; pornography and the subordination of women; the constitutionality of campaign finance reform; and the treatment to be accorded new technologies of communication under the Constitution. The result is a provocative engagement of the reader in thinking about the puzzles and paradoxes of our commitment to free expression.

    eISBN: 978-0-8147-2343-2
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface and Acknowledgments
    (pp. vii-x)
  4. Introduction
    (pp. 1-4)

    When we talk about what “freedom of speech” means in America, the discussion almost always centers on “freedom,” not on “speech.” “Speech” is something we know and can easily recognize. Our arguments therefore concern how much freedom it should enjoy. But is this a correct way of thinking about free speech? Are we wrong in simply taking the speech part of the equation for granted?

    When a group of boys in St. Paul, Minnesota, sets fire to a cross on the front yard of a black family, our arguments about the extent to which the First Amendment should immunize their...

  5. I Speakers

    • [I Introduction]
      (pp. 5-6)

      The First Amendment reads: “Congress shall make no law … abridging the freedom of speech.” The guarantee is brief and to the point. But its brevity bristles with ambiguity.

      What is the significance of its application to Congress alone? As it turns out, the word Congress is to be read broadly to include all parts of the national government, legislative, executive, and even judicial, and state governments as well.

      What does the term “law” mean, and for that matter, the term “no” law? The Supreme Court has never suggested, for example, that fraud accomplished through words cannot be prohibited. As...

    • Story One The Jacket (Cohen v. California, 403 U.S. 15 (1971))
      (pp. 7-36)

      Was it because of the chill in the air that Paul Robert Cohen wore the jacket or was it because of the words “Fuck the Draft” painted on the back? As he put his jacket on and left his home on that fateful spring morning in 1968, Cohen did not realize that his destination, the Los Angeles County Courthouse, would be only the first stop on a much larger journey. He would enter the courthouse of his own volition. He would leave it under arrest. Thus began a journey that would shake the legal world, reshape the meaning of speech...

    • Story Two The Author (McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995))
      (pp. 37-58)

      This is a story about anonymity, about speech with no named author. While it is possible, as we shall see, for speech to havenoauthor at all, in our story an author does exist. She simply fails to identify herself. Her story forces us to think about the role authors play in the First Amendment. Is speech somehow incomplete, a lesser order of “speech,” without a known author? And what, precisely,isan author for purposes of thefreedomof speech? Does speech lack significance without an author, just as a tool lacks function without a hand that wields...

    • Story Three The Corporation and the Candidate (Austin v. Michigan State Chamber of Commerce, 494 U.S. 652 (1990))
      (pp. 59-90)

      In America the speech marketplace is populated as much by corporations as by individuals. Procter & Gamble speaks to us about detergents; Mobil speaks to us about energy policy and the environment; and through campaign contributions and PACs, corporations ranging from IBM to the ACLU speak to us with increasing frequency about the political candidates for whom we should cast our ballots. This, it seems, is the American way—just as, in the old days before Honda, Nissan, and others, it was often said, “What’s good for General Motors is good for America.”

      But when General Motors speaks, who is really...

  6. II Speech and Conduct

    • Story Four The Burning Cross (R.A.V. v. St. Paul, 505 U.S. 377 (1992))
      (pp. 93-114)

      The First Amendment says that government may not “abridg[e] the freedom of speech,” which the Supreme Court has interpreted to mean that government can rarely and only for the most compelling of reasons invoke its power to regulate speech. Conduct, on the other hand, is not free. Government can regulate it broadly and for just about any reason, and in any way, that a democratically elected majority wishes. But can conduct sometimes be speech? Can speech sometimes be conduct? Aren’t these but two sides of the same coin: an act is either speech or conduct, with a single boundary separating...

    • Story Five The Artist: Carnal Knowledge as Art, Pornography as Subordination, and the V-chip as Family Values (Jenkins v. Georgia, 418 U.S. 153 (1974))
      (pp. 115-150)

      Plato’s allegory is about meaning, about how the meaning of what we see is a function of what we know. Our story is also about meaning: the meaning of speech, and more specifically the meaning of movies about sex. Is sexual intercourse portrayed in a movie the true image, or is it instead a shadow of another image, such as liberty and freedom, hopelessness and despair, lust and immorality, love and intimacy, subordination and inequality?

      If we draw on Plato’s allegory, the question of a film’s meaning is, at one level, a question of epistemology. The term “epistemology” is defined...

  7. III The Audience

    • [III Introduction]
      (pp. 151-154)

      Speech consists of three parts: a speaker, a message, and a receiver. We now turn our attention to the third part of the trilogy, the receiver. In this age of exploding forms of communication there is really no good, single term to describe the recipient of a communication—we read, we hear, we feel, we visualize, we imagine, singly and in every combination. Yet the term “receiver” seems both cumbersome and impersonal. So I will use the admittedly inaccurate but common term “audience” to describe the many roles in which we find ourselves on the receiving end of the communication...

    • Story Six The Pharmacist: Speech and Its Consumers (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976))
      (pp. 155-186)

      The role of the audience under the First Amendment is a subject that has already been touched upon but not directly confronted in many of the earlier stories. It was raised in a glancing way in the first story, “The Jacket,” where Justice Harlan addressed the conflict between Paul Cohen’s right to wear a jacket in the courthouse emblazoned with the words “Fuck the Draft,” on the one hand, and the offense the message could engender in those who saw the jacket, on the other. The role of the audience was raised more directly, although narrowly, in “The Author,” where...

    • Story Seven The Burning Flag: The Medium and the Message (Texas v. Johnson, 491 U.S. 397 (1989))
      (pp. 187-206)

      In part 1 we explored the relationship between speech and its author through the story of Margaret McIntyre and her anonymous leaflet. In the story about the Michigan Chamber of Commerce and corporate political speech, we explored the closely related question of the need for an author (whether identified or not) as a precondition to First Amendment protection of speech in the name of liberty or freedom. In both cases we came to understand the importance of an author, someone speaking his or her own mind, to the protected act of speaking.

      But there is more that should be said...

  8. Reminiscences: Reflections on Enduring First Amendment Questions
    (pp. 207-214)

    October of 1995 marked the start of a new Term of the Supreme Court. It had been twenty-five years exactly since the Court took up the case ofCohen v. California, the case that, Justice Harlan observed, “may seem at first blush too inconsequential to find its way into our books” but that presented an issue “of no small constitutional significance.” And it was a new Supreme Court, too, for by 1995 none of the justices who had been present at the argument ofCohen v. Californiaremained on the Court.

    On October 7, 1995, the first Monday in October,...

  9. Index
    (pp. 215-220)
  10. About the Author
    (pp. 221-222)
  11. Back Matter
    (pp. 223-223)