A critical analysis of discourses about free speech in the press and courts

This dissertation examines the relationships between the cultural and legal contexts that encourage or discourage nontraditional expressive activities to attain free speech protection. The activities discussed include flag burning, MP3 file sharing, and big data analysis. Each activity’s relation to free speech values is controversial. Each activity represents a potential threat to either the status quo or to powerful interest groups. These activities are studied because case law surrounding them elucidates key limitations of current free speech thinking in the courts, which is labeled the post-Meiklejohn approach. Press coverage of these cases frequently exacerbates these limitations of current free speech jurisprudence. This project analyzes the judicial and press discourses in each case because a society that encourages free speech will be fully realized only if there is continued respect for free speech in the judiciary, the government as a whole, civil society, the press, and the broader population. Continued respect for free speech among the citizenry could be threatened if press coverage poorly explains the values at stake. To paraphrase Oliver Wendell Holmes, Jr, the drive to censor is “natural” while the reasons to tolerate dissent must be re-learned constantly. Moreover, society should update free speech thinking for new technologies. But first amendment jurisprudence’s current focus on content and viewpoint-based government regulation is poorly suited to the task of asking whether new forms of expression advance a healthy free speech culture. If the courts and citizens do not grapple with issues surrounding free speech and new technologies, free speech risks becoming what John Stuart Mill called a dead dogma. However, many scholars believe that popular constitutionalism offers a potential antidote to the limits of judicially-enforced constitutional law. This dissertation’s use of media studies methods explores that hope. Some free speech discourses circulate between the press and the courts, while others do not. Institutional features encourage or discourage certain discourses and their flow between institutions. This dissertation analyzes factors that influence press and judicial discourses surrounding free speech using articulation theory, John Fiske’s concept of a media event, and classical free speech theory. Some of these discourses neutralize the radical potentialities inherent in free speech. Litigants who “win” in a court of law may “lose” in the popular press if they are portrayed as outside of respectable society. In other cases, the normative clashes between free speech and values such as commerce or privacy may be neutralized by discourses that portray these clashes as inter-or intra-industry disputes relevant to policymakers but not as normative issues of constitutional significance. In both sets of cases, the social and the constitutional issues raised by the disputes between litigants are not given a full hearing. Moreover, the discourses that serve to discredit those who rely on free speech are discourses either unrelated to or antithetical to traditional free speech values. This dissertation analyzes and critiques these discourses from the perspective of one who values increased public participation in the creation of culture, politics and public life.