CENSORSHIP AND THE REGULATION OF EXPRESSION652, 1925) when the Court ruled that the four-
teenth Amendment required that state laws not be
in conflict with federal law. In addition to state and
constitutional law, other major sources of legal
regulation originate in common law (e.g., sedition,
privacy) and administrative law (e.g., rulemaking
of the FCC).
Despite the apparent clarity of the First Amend-
ment language, both Congress and the states have
crafted many laws that regulate freedoms of speech
and press. These regulations stem primarily from
three sources. First, the First Amendment is sub-
ject to widely varying interpretations. Some consti-
tutional scholars conclude that at time the Bill of
Rights was drafted, conceptions of freedom of
expression referred only to prior restraints on
speech. Others note ambiguities in the words
‘‘abridge’’ and ‘‘speech,’’ and further question the
intent of the framers of the Constitution. For
example, do regulation of defamatory tracts, false
commercial advertising, perjury, threats, violent
obscenity, or nude dancing necessarily count as
abridgments of speech (Sunstein 1993)? Some
have also argued that the speech clause governs
only political speech or that the press clause should
not be interpreted to apply to tabloid entertain-
ment that masquerades as news.
Second, the modern world differs from the
world of the late eighteenth century. The framers
could not have foreseen the technological advanc-
es that have brought us telephones, television, and
the Internet. Neither could they have had in mind
the concentrated corporate ownership or the ad-
vertising-driven programming that characterizes
today’s media. Some argue that government regu-
lation is required in order to achieve the principles
embodied in the Constitution.
Third, speech rights do not stand alone. For
example, the rights of some to speak may conflict
with the rights of others to be let alone or to be
treated with dignity and equality. Also, the speech
rights asserted by some inevitably conflict with the
speech rights claimed by others.
In light of such issues, the clarity and simplici-
ty that at first seem to characterize the First Amend-
ment turn out to be illusory. As a result, scholars
have developed theories of the underlying values
that they believe free speech should promote in a
democracy and should govern interpretation of
the First Amendment. Although no theory is uni-
versally accepted as dominant, most agree with the
judgment of constitutional scholar Emerson (1973)
that the value of free expression lies in its ability to
promote participation in the decision-making proc-
ess by all members of society; to advance knowl-
edge and the pursuit of truth; to promote individu-
al self-fulfillment; and, by allowing dissent to be
publicly vented, to promote a balance between
stability and change.Disputes over the role of government in regu-
lating speech turn, in part, on which of these
values is given precedence. Those who emphasize
the role of speech in promoting deliberative de-
mocracy often favor an affirmative role of govern-
ment to promote viewpoint diversity or to ensure
that the distribution of viewpoints in the public
sphere is somewhat reflective of their distribution
in the community. In practical terms, this may lead
to restrictions on the amount of money that corpo-
rations can contribute to political campaigns, to
the enforcement of rights of access to media by
citizens, to the strategic placement of ‘‘public fo-
rum’’ spaces on the Internet, to stricter enforce-
ment of the antitrust laws as they pertain to media,
or to government subsidies for valued forms of
speech (Baker 1998). In many instances, the pro-
motion of viewpoint diversity and balance may
require the government to regulate or infringe
upon the speech or property rights of some in
order to advance the needs of deliberative democracy.DIFFERENTIAL JUDICIAL TREATMENT OF
DIFFERENT FORMS OF EXPRESSIONThe corpus of First Amendment decisions shows
that all speech is not equal in the protections it is
afforded. Political discourse—broadly defined to
include speech about social, cultural, and religious
issues—is considered speech of the highest value.
As a result, the government must demonstrate a
‘‘compelling’’ interest to warrant its restriction.
Particularly, political speech cannot be directly
restricted unless it is ‘‘directed to inciting or pro-
ducing imminent lawless action and is likely to
incite or produce such action.’’ Advertising was
long considered outside the purview of First
Amendment protections and was subject to strict
regulation. Commercial speech has experienced
tremendous leaps in its status under the Court as