Ken Kersch - Freedom of Speech : Rights and Liberties under the Law (Americas Freedoms)

Cover

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Other Books in Americas Freedoms
Donald Grier Stephenson Jr., Series Editor

Cruel and Unusual Punishment, Joseph A. Melusky and Keith A. Pesto

Equal Protection of the Laws, Francis Graham Lee

Freedom of Association, Robert J. Bresler

Property Rights, Polly J. Price

The Right to Bear Arms, Robert J. Spitzer

The Right to Counsel and Privilege against Self-Incrimination, John B. Taylor

The Right to Privacy, Richard A. Glenn

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Freedom of Speech

Rights and Liberties under the Law

Ken I. Kersch

Santa Barbara, California Denver, Colorado Oxford, England

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Copyright 2003 by Ken I. Kersch

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, except for the inclusion of brief quotations in a review, without prior permission in writing from the publishers.

Library of Congress Cataloging-in-Publication Data
Kersch, Kenneth Ira, 1964
Freedom of speech : rights and liberties under the law / Ken I.
Kersch.
p. cm. (Americas freedoms)
Includes bibliographical references and index.
ISBN 1-57607-600-8 (hardcover : alk. paper) e-book ISBN 1-57607-607-5
1. Freedom of speechUnited States. I. Title. II. Series.
KF4772.K47 2003
342.73'0853dc21
2003002634

ABC-CLIO, Inc.
130 Cremona Drive, P.O. Box 1911
Santa Barbara, California 93116-1911
This book is printed on acid-free paper.
Manufactured in the United States of America

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For my students

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To me the question whether liberty is a good or a bad thing appears as irrational as the question whether fire is a good or a bad thing? It is both good and bad according to time, place, and circumstance, and a complete answer to the question, In what cases is liberty good and in what cases is it bad? would involve not merely a universal history of mankind, but a complete solution of the problems which such a history would offer.

James Fitzjames Stephen
Liberty, Equality, Fraternity

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Series Foreword xv

Preface xxv

1 Introduction

Institutional Protections for the Freedom of Speech,

Why Free Speech? First Amendment Theory,

ProFree Speech Arguments,

AntiFree Speech Arguments,

Free Speech Today,

References and Further Reading,

2 Origins and Early Development,

The Regulation of Speech under English Common Law,

Continuity and Change in the Colonies and Early American Law,

Founding Worries,

Speech in the Early National Era,

Fighting Words: The Duel in the Early United States,

The Main Currents of the Law of Speech in the Nineteenth-Century United States,

Robust Parties, Antislavery Agitation, and Speech in the United States,

Freedom and Civil War,

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PostCivil War Doctrine: Thomas Cooleys Treatise and Free Speech,

The Eclipse of Privacy and Rise of Obscenity,

References and Further Reading,

3 The Twentieth Century

Free Speech as Bohemian Fashion,

Political Radicalism Prior to World War I,

The IWW Free Speech Fights,

The Birth Control Movement and Free Speech,

World War I, Free Speech, and the Supreme Court,

The Birth of Modern Free Speech Law: Schenck, Abrams, Debs, and Frohwerk,

Incorporation, the Red Scare, and the Rise of the Supreme Court as the Preeminent Authority on Free Speech Rights,

Speech and the U.S. Worker,

The Jehovahs Witnesses and the Development of the Public Forum Doctrine,

Monitoring the Movies: The Legion of Decency and the Hays Commission,

Welcoming Sexual Speech,

The Threat and Fear of Communism,

The Social Movements of the 1950s and 1960s,

Late-Century Progressive Attacks on Free Speech,

Doctrine and Issues at Centurys End,

References and Further Reading,

4 The Future of the Freedom of Speech

The Return of the Dangers of Radical Political Speech,

Government Largesse and the Freedom of Speech,

The Campaign Finance Controversy: Bribery or Constitutionally Protected Political Speech?

Private Power, Technology, and the Freedom of Speech,

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The New Public Health Censorship and the Continuing Progressive Political Correctness Campaign,

Globalization: Political Correctness by Other Means?

Conclusion,

References and Further Reading,

5 Key People, Cases, and Events

6 Documents

Peter Wentworth, Speech on the Liberties of the Commons (1576),

John Milton, Areopagitica (1644),

John Trenchard and Thomas Gordon, Of Freedom of Speech,

Benjamin Franklin, An Apology for Printers, Philadelphia Gazette (June 10, 1731),

Montesquieu, Spirit of the Laws, Book 12, Chapters 1213 (1748),

John Wilkes, The North Briton no. 45 (April 25, 1763),

William Blackstone, Commentaries on the Laws of England, Book 4, Paragraph 13 (1769),

Publius [Alexander Hamilton], Federalist Paper no. 84 (1787),

U.S. Constitution (1787),

Sedition Act (1798),

Letter, John Marshall to a Freeholder (1798),

James Madison, Report on the Virginia Resolution (1800),

Thomas Jefferson, First Inaugural Address, Washington, D.C. (March 4, 1801),

St. George Tucker, editor, Blackstones Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia (1803),

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Alexander Hamiltons Speech in Harry Croswells Case (1804),

Joseph Story, Commentaries on the Constitution of the United States (1833),

Barron v. Baltimore, 32 U.S. 243 (1833),

Alexis de Tocqueville, Democracy in America (1833),

Gag Rule, U.S. House of Representatives (1836),

John Stuart Mill, On Liberty (1859),

Fourteenth Amendment, U.S. Constitution, Section 1 (1868),