Freedom of Expression in the Marketplace of Ideas

Joseph S. Tuman (J.D., University of California, Berkeley; B.A., political science, University of California, Berkeley) is Professor of Political and Legal Communications at San Francisco State University, where he regularly teaches upper-division courses in rhetoric and terrorism, political and legal communication, argumentation & advocacy, and technology and human communication. A past recipient of the Jacobus tenBroek Society Award for Teaching Excellence, Professor Tuman has also taught at the University of California, St. Mary’s College, the New School for Social esearch, and Paris II, the top law school in France. He is the author of Political Communication in American Campaigns(SAGE, ©2008) and the co-author of numerous books, including Freedom of Speech in the Marketplace of Ideas and of The Bedford/St. Martin′s Guide to Public Speaking; he has also been the journal editor of Contemporary Argumentation & Debate: The Journal of the Cross Examination Debate Association. His work has been featured in news publications such as the New York Times, Los Angeles Times and the San Francisco Chronicle, and he has served as a network analyst for news programs on ABC, NBC, CNN and CNN International, FOX and the BBC. He currently appears as a regular political commentator for CBS in the western United States.

• PrefaceList of Court Cases1. Introduction to Freedom of Expression and the American Legal SystemThe Nature of Freedom of SpeechHow Free Expression Rights Are DeterminedJustifications and Critiques of Freedom of ExpressionConclusion2. Historical Perspectives on Freedom of ExpressionFree Expression in World CulturesFreedom of Expression in America: 1600-1917Conclusion3. Incitement to Illegal Conduct and True ThreatsThe Clear and Present Danger TestThe Gitlow Decision Protects Freedom of Speech From State AbridgementFreedom of Speech for Communists: Clear and Present Danger?Brandenburg v. Ohio: Strengthening Protection of SpeechThe Brandenburg Rule and Contemporary CommunicationDistinguishing Incitement From True ThreatsConclusion4. National Security and Freedom of ExpressionA National Security Exception to the Constitution?Government Efforts to Limit Free Expression in WartimeGovernment Practices That Keep Information SecretGovernment Surveillance of Its CitizensConclusion5. Fighting Words and the Categorical Exceptions DoctrinesThe Categorical Exceptions and Fighting Words Doctrines Are Announced in ChaplinskyThe Fighting Words Definition is Refined in TerminielloThe Definition of Fighting Words is NarrowedR.A.V. v. City of St.Paul: Fighting Words and Categorical Exceptions Doctrines Live OnConclusion6. Hate SpeechThe Problem of Hate SpeechDo Speech Codes Violate the First Amendment?Thinking Critically About Hate Speech RegulationConclusion7. Defamation: First Amendment IssuesNew York Times v. Sullivan: The Actual Malice RuleThe New York Times Rule: Application of the Actual Malice TestThe New York Times Rule: Proof of Actual MaliceBeyond New York Times v. Sullivan: Additional First Amendment ProtectionsHas the Actual Malice Rule Served Its Purpose?Conclusion8. Obscenity and Child PornographyObscenity Not Protected by the First Amendment1957-1973: The Supreme Court Struggles With Meaning of ObscenityCourt Majority Agrees on ObscenityDoes Context Influence Constitutional Protection?Critical Thinking About ObscenityDistinguishing Obscenity From Child PornographyConclusion9. Time, Place, and Manner RestrictionsHistorical DevelopmentsThe Modern Time, Place, and Manner TestThe Forums Held in Trust for Public ExpressionTime, Place, or Manner Rules: Noteworthy ControversiesConclusion10. Symbolic ExpressionThe Benefits of Symbolic ExpressionThe Definitions of Symbolic ExpressionThe Test for Constitutional Protection of Symbolic ExpressionRestrictions Related to Suppression: The Flag Burning IssueConclusion11. Technology and the First AmendmentMedium-Specific Restrictions on Expression: Early HistoryTheories Used to Justify Broadcast RegulationRegulation of Internet CommunicationConclusion12. Privacy and Free SpeechPrivacy and the Search for Penumbral RightsThe Right to Privacy in One′s SelfThe Right to Privacy Within the HomeBalancing a Right to Persuade With a Right to Privacy in Public Spaces Outside the HomeThe Right to Informational PrivacyConclusion13. Access to InformationA Right of Access to Government InformationJournalists′ PrivilegeAccess to Judicial ProceedingsConclusion14. Copyright and the First AmendmentCopyright Law in the United StatesCopyright Law and the First AmendmentCopyright and New TechnologyConclusion15. International and Comparative Perspectives on Freedom of ExpressionThe Global Freedom of Expression LandscapeCultural Values and Free Expression RightsJudicial Decisions on Freedom of ExpressionTwenty-First Century Technology and International Freedom of ExpressionConclusionIndexAbout the Authors