Chapter 8 The Rediscovery of the First Amendment

"While journalism and political debate in America continued to be exceptionally uninhibited and free of government control, the courts interpreted free speech rights in a highly restrictive fashion" (p. 267)
- The U.S. Supreme Court's development of a judicial approach to the protection of First Amendment freedoms has long been a source of frustration to those who feel that free expression is one of the most basic and fragile rights in our constitutional system. One recurring theme, ongoing since at least the early part of the 20th century, has been the notion that government must demonstrate some significant competing interest to limit certain types of speech. Judges using this approach to judicial review seek to balance the value of free expression against the need to implement other societal interests. Depending on the type of speech in question, the balancing test may require the competing interest achieve a given level of significance, whether "compelling," "substantial," or "important," or a variety of other descriptive terms, before the competing interest can override the strong interest in freedom of expression.