Classic Model of First Amendment Theory: A number of positivist theorists explain what the First Amendment should mean by explaining what positive value the First Amendment should protect. In other words, they believe that we are protecting speech because some speech must be of greater importance.
Attributes of a Positive Theory:
Positivist theorists can be classified according to their ultimate goals of protecting either society or the individual. That ultimate goal shapes the specific values of speech that each theorist believes should be the most protected under the Constitution and which should receive little or no protection.
Marketplace of Ideas/Search for Truth: Open debate, through which there is an exchange or competition of ideas, is the only way for people to discern the truth and reject falsehood.
John Miltons Areopagitica (1644)
"Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple, who ever knew Truth put to the worse in a free and open encounter?"
The Marketplace of Ideas metaphor was introduced into Supreme Court doctrine by Justice Oliver Wendell Holmes in his 1919 dissent in Abrams v. U.S. He said societys ultimate good "is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market."
This metaphor is the model most called upon by the Supreme Court in the resolution of free-expression cases. Justices have used it to bolster free expression in virtually every area of First Amendment jurisprudence: prior restraint, libel, invasion of privacy, pornography, access, advertising, picketing, expressive conduct, broadcasting, and cable regulation. The usage has increased dramatically since the 1970s.
The Court has repeatedly said the primary purpose of the FA is to protect an uninhibited marketplace where differing ideas can clash. Yet, the Justices have made virtually no effort to extrapolate on the metaphor or why they believe it works. They seem to have accepted without question that the metaphor is effective because they believe the rationale upon which it is based is sound.
CRITICS (Jerome Barron): Marketplace metaphor works on false assumptions:
However, research shows that the Court doesnt recognize a single, universal marketplace of ideas, but, instead, numerous mini-marketplaces, each with its own dynamics, parameters, regulatory schemes and audiences. Among the mini-markets are broadcasting, local communities, commercial speech, political speech, mail systems, school classrooms and libraries, state fairs, scholarly conferences and lectures, and picketing. An idea enters A marketplace, rather than THE marketplace, where it competes in a more limited and more controlled environment. The access is likely to be easier. The audience is likely to have more common ground. There is greater likelihood of some resolution.
Political Self-government: First Amendment is intended to safeguard & protect individual self-governance in a free and democratic society.
He believed that free speech is not an individual right of self-fulfillment but rather serves only self-government. Freedom of speech is not a Natural Right but is assured only to speech bearing directly or indirectly on issues with which voters have to deal.According to this theory, freedom of speech can't be abridged, but speech itself can be. In other words, society can punish specific speech for the sake of the general welfare.
He didn't believe in First Amendment rights for Private Speech. In other words, speech directed toward our own interests is within the scope of the regulatory power of the legislature.
He used a Town Hall Analogy: Not essential that everyone speak, just that everything worth saying shall be said. The state can act as moderator and regulate the process of debate: time, place & manner restrictions. However, the state must be content neutral. No one is barred because we dont like what the speaker has to say.
He didn't believe in civil disobedience. Once debate has ended in policy and has been formulized into statute, people are required to obey until the law is changed.
Checking Value: Media act as a counterweight to the government.
Vincent Blasi (1977) believed that abuse of official power is a particularly serious evil to be avoided because government can use legitimized violence for its own end. Because abuse of official power is so harmful and likely to occur, its prevention and containment are of paramount importance. Because of the size and complexity of modern government, there is a need for well-financed, well-organized, professional critics (WATCHDOG) of government -- the media.
However, he would grant less journalistic autonomy if it served the checking value. For example, in a one-newspaper town, the editors of that newspaper could be forced to provide access to someone challenging the political structure in the town. The Supreme Court has held that such access is not required of print journalists.
Safety Valve: Allowing dissidents to expound their views enables them to let off steam. Free speech provides a balance between stability and change in a society.
Thomas Emerson (1970) believed that people who have had full freedom to state their position and to persuade others will be more willing to accept decisions that go against them. Without free expression, the real problems of society may remain hidden and fester. So by suppressing reform, censorship may transform problems into a revolution.
Self-Fulfillment: Individual realization of character and potential as a human being means the right to form your own beliefs/opinions and the right to express those belief/opinions.
Expression is a Natural Right. The purpose of society is to promote the welfare of the individual.
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