Freedom of Speech and the Press

This chapter returns to individual rights, specifically the First Amendment protection of free speech and the press, and it provides an account of “selective incorporation” by the Fourteenth Amendment. The two central claims in the chapter are that different aspects of exercises of speech and free press are appropriately judged by different standards and that the freedoms are rightly now perceived as much more expansive than when the Bill of Rights was adopted. In many areas here, stringent judicial review is needed to avoid political suppression and the downgrading of minority groups. Much of the chapter addresses specific topics and the variations they involve. These sections include the “clear and present danger” test, antigovernment speech, soliciting criminal behavior, “fighting words,” hate speech and insults, lying, defamation, obscenity, advertising, and content distinctions.