Table Of ContentFree Speech on Trial
FREE SPEECH ON TRIAL
Communication Perspectives on
Landmark Supreme Court Decisions
EDITED BY RICHARD A. PARKER
THE UNIVERSITY OF ALABAMA PRESS
Tuscaloosa and London
Copyright © 2003
The University of Alabama Press
Tuscaloosa, Alabama 35487-0380
All rights reserved
Manufactured in the United States of America
Typeface: Granjon
∞
The paper on which this book is printed meets the mini-
mum requirements of American National Standard for
Information Science–Permanence of Paper for Printed
Library Materials, ANSI Z39.48-1984.
Library of Congress Cataloging-in-Publication Data
Free speech on trial : communication perspectives on landmark Supreme Court
decisions / edited by Richard A. Parker.
p. cm.
Includes bibliographical references and index.
ISBN 0–8173–1301-X (cloth : alk. paper)—ISBN 0–8173–5025-X (pbk. : alk. paper)
1. Freedom of speech—United States—Cases. I. Parker, Richard A. (Richard Anthony),
1945–
KF4772.A7 F74 2003
342.73′0853—dc21
2003001148
British Library Cataloguing-in-Publication Data available
Contents
Preface vii
Introduction 1
Franklyn S. Haiman
Communication Studies and Free Speech Law 9
Richard A. Parker
Schenck v. United States and Abrams v. United States 20
Stephen A. Smith
Whitney v. California 36
Juliet Dee
Stromberg v. California 52
John S. Gossett
Near v. Minnesota 69
John S. Gossett and Juliet Dee
Chaplinsky v. New Hampshire 85
Dale Herbeck
West Virginia State Board of Education v. Barnette 100
Warren Sandmann
New York Times v. Sullivan 116
Nicholas F. Burnett
United States v. O’Brien 130
Donald A. Fishman
Brandenburg v. Ohio 145
Richard A. Parker
vi / Contents
Cohen v. California 160
Susan J. Balter-Reitz
Kleindienst v. Mandel 172
Mary Elizabeth Bezanson
Miller v. California 187
Joseph Tuman
Buckley v. Valeo 203
Craig R. Smith
FCC v. Paci¤ca Foundation 218
R. Wilfred Tremblay
Central Hudson Gas & Electric v. Public Service Commission 234
Joseph J. Hemmer Jr.
Hazelwood School District v. Kuhlmeier 250
Andrew H. Utterback
Hustler Magazine, Inc. v. Falwell 264
Edward C. Brewer
Texas v. Johnson 281
David J. Vergobbi
Reno v. ACLU 298
Douglas Fraleigh
Conclusion 313
Ann M. Gill
Contributors 327
Case Index 331
Subject Index 339
Preface
This collection of essays evolved from a panel presentation on “The Most
Important Free-Speech Decisions of the Supreme Court” at the 1999 conven-
tion of the National Communication Association. Happily, eight of the nine
scholars who originally presented in Chicago remained with the project;
their essays appear in print here for the ¤rst time. They are joined by twelve
colleagues who share an interest in scholarly investigations at the intersection
of communication studies and the law.
Each essay focuses on one or two landmark Supreme Court cases. Con-
tributors were asked to address two questions: Why are these cases important
to the evolution of freedom of expression in America? How do communica-
tion theory and free speech law interrelate within the context of the cases?
In the introduction to this collection of essays, Franklyn Haiman provides
much needed historical perspective to the project as he relives the origins of
communication scholarship in First Amendment law. Haiman also explores
some of the insights that communication scholars contribute to questions of
the law.
My essay “Communication Studies and Free Speech Law” offers a brief
theoretical prologue to, and historical survey of, contributors’ methodologies.
It also summarizes each contributor’s theoretical perspective.
The 19 essays that focus on landmark cases in free speech law constitute
the heart of the project. The essayists employ three major approaches and
frequently combine these in fruitful ways. One procedure is to describe and
interpret the situation and context of the communicative events that precipi-
tated the con®ict between the state and the accused. A second method is to
analyze implicit communication theories that reside in judicial opinions. The
third strategy is to demonstrate how judicial opinions have advanced our
understanding of what communication is and how it functions in a demo-
cratic society.
viii / Preface
The scholar or student of communication seeking a coherent explanation
of the development of case law in freedom of expression may ¤nd no better
discussion than that contained in the essay which concludes this volume.
Ann Gill weaves the work of the contributors into the fabric of the law with
an appreciation of the grand design implicit in the work of the framers of the
First Amendment.
I extend my gratitude to those who contributed to the completion of this
volume and my appreciation to the many whose support may have gone un-
recognized. First and foremost, two scholars in®uenced the approach to re-
search emphasized in this collection of essays. William A. Linsley of the
University of Houston taught a course in freedom of expression and wrote
extensively about the development of free speech law; his efforts sparked
the academic interests of many students, including me. William Bailey of the
University of Arizona was arguably the ¤rst communication scholar to con-
tend that the courts have an obligation to revise or abandon pragmatic as-
sumptions about the communication process that fail to accord with contem-
porary knowledge. This project is, in many ways, a product of these mentors’
in®uences.
Many others have helped make this collection of essays a reality. The fac-
ulty and administrators of the School of Communication at Northern Ari-
zona University—especially former and current Deans Sharon Porter, Paul
Helford, and Roger Lavery—provided invaluable support for various aspects
of the project. Nick Burnett’s eloquent insistence that communication theory
and research should be a focal point of the essays helped de¤ne the book.
Juliet Dee, John Gossett, Frank Haiman, and Andrew Utterback stepped in
at critical moments with timely assistance. The ad parody that appears in Ed
Brewer’s essay on Hustler Magazine, Inc. v. Falwell is copyrighted and is used
with the express written permission of Larry Flynt Publications, Inc. Paul
Siegel graciously provided a ¤le copy of the ad parody. The knowledgeable
and capable staff at the University of Alabama Press, as well as copyeditor
Sandra Williamson, have performed the remarkable task of converting an
idea into a publication.
My deepest appreciation, however, is reserved for my wife and scholarly
soul mate, Lea Parker, who has encouraged, advised, consoled, and ener-
gized me throughout this project’s development. This work would not be in
readers’ hands without her unfailing assistance.
Free Speech on Trial
Description:Describes landmark free speech decisions of the Supreme Court while highlighting the issues of language, rhetoric, and communication that underlie them. At the intersection of communication and First Amendment law reside two significant questions: What is the speech we ought to protect, and why shou
