Sun. Sep 25th, 2022
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In the United States, debate over freedom of speech is dominated by the First Amendment. However, it is not the only legal instrument that safeguards expressive freedom, institutional press rights, and the democratic principles that these rights promote. A plethora of municipal, state, and federal laws do the same thing, however in ways that the First Amendment does not. The history and current operation of this non–First Amendment body of free speech legislation are examined in this article. As a result, we have a new perspective on both the past and present of the American free speech tradition. It indicates that in the nineteenth century, there was more legal protection for speech than experts had imagined.

It also demonstrates that, contrary to popular belief, the present system of free expression is far more majoritarian and pluralist in its understanding of what freedom of speech entails.

Recognizing this is crucial not only from a descriptive standpoint, but also from a doctrinal standpoint. This is because the Supreme Court looks to history for guidance in interpreting the meaning of the right in few other areas of constitutional law. Nonetheless, the Court’s understanding of the relevant regulatory history is limited. Almost any awareness of the crucial nonconstitutional methods that legislators have traditionally employed to promote freedom of speech is absent from the Court’s understanding of the concept. As a result, there is a patchwork of First Amendment law that is based on a distorted picture of both our regulatory present and past.

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Introduction

In the United States, the First Amendment dominates both popular and academic debates on freedom of speech. If one examines the vast amount of writing produced to analyze, celebrate, or criticize how expressive freedom has been legally guaranteed in this country, it is clear that the vast majority of it focuses on the First Amendment’s Free Speech and Press Clauses, as well as the judicial opinions that interpret and give those clauses force.

It’s understandable why debates about freedom of speech and the press have tended to focus on the First Amendment.

1. The Right to Free Expression The First Amendment’s Clause has long been one of the most potent instruments in the Federal Constitution for protecting individual rights. It has been applied to a bewildering array of different types of communication and expressive behavior. Today, the First Amendment protects not only openly political and journalistic speech, but also religious, artistic, scientific, and most types of popular entertainment, nonobscene pornography, commercial commercials, and even nude dance.

2. The current First Amendment’s strength and size have given it a profound cultural stature.

3. They also make it simple to conflate the United States’ free speech tradition with the First Amendment tradition.

4. The First Amendment’s magnitude and brightness, like the sun, tends to wipe out everything else. It is, however, a fallacy to believe that the First Amendment is the exclusive legal protection for freedom of speech in the United States. This is because, as the Supreme Court has stated, the federal courts do not have exclusive jurisdiction over the interpretation and enforcement of the rights to freedom of speech and press, as well as the penumbral right of association. Hudgens v. NLRB, Hudgens v. NLRB, Hudgens v.

5. Even when the First Amendment does not, the Court stated that “statutory or common law may in some cases enhance protection or give remedies against [efforts] to abridge… free expression.”

6. In PruneYard Shopping Center v. Robins, a few years later,

7.  Similarly, the Court found that state constitutions may offer “speech rights” that are “more expansive than those conferred by the Federal Constitution.”

8. As a result, state constitutional law, state and federal statute law, and state common law can, and often do, provide more protection for speakers and listeners’ speech, press, and expressive association than the First Amendment. After the PruneYard ruling, state constitutional law has proven to be less of an essential source of free speech protection than some thought or predicted.

9. For decades, courts in New Jersey, California, and other states have construed state constitutional guarantees of expressive freedom to confer rights not granted by the First Amendment.

10. More importantly, during the past two centuries, local, state, and federal legislatures have passed hundreds, if not thousands, of laws meant to safeguard the same ideals and interests that the First Amendment does. In some circumstances, legislatures have given regulatory agencies the same authority. To concentrate simply on the protection provided by the First Amendment is to misunderstand how freedom of speech is currently understood and protected in the United States.

11. This article tries to address or at least start the process of correcting this misunderstanding by looking at the historical antecedents as well as the current operation of what it refers to as the non–First Amendment law of freedom of speech.

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12.  The word refers to the numerous municipal, state, and federal laws that attempt to safeguard the same interests that the First Amendment’s Free Speech and Press Clauses do. These laws accomplish this not simply by enforcing the First Amendment’s speech rights and facilitating duties, but also by granting rights and imposing duties that the First Amendment does not mandate, or by intervening in the speech marketplace in other ways not mandated by the First Amendment cases.

13 It is undeniably true that judges in the eighteenth and nineteenth centuries interpreted constitutional principles of free speech to provide speakers and listeners minimal rights against the government.

14 However, lawmakers were far more sensitive than the courts to the need to defend expressive freedom and the democratic liberties that it enabled against both government and corporate power. Indeed, we discover significant and ongoing legislative concern during this time period about the threat that the expanding industrialization of the US economy posed to the less powerful’s expressive freedom as well as the institutional press’s well-being.

However, paying attention to the non–First Amendment law of freedom of expression modifies our view of the history of the American free speech tradition. It also makes our knowledge of the present more difficult. This is because it reveals that the modern free speech tradition is far more pluralist in its definition of the right and majoritarian in its application than we are accustomed to seeing.

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