Inquiry into a principle of "speech plus"
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Authors
Shugrue, Richard E.
Issue Date
1970
Volume
3
Issue
2
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
Unfortunately, Americans have been ambivalent with regard to freedom of expression and nonverbal dissent. Nonverbal conduct which is intimately linked with expression of opinions has often been considered wholly unprotected by the guarantees of the First Amendment. The espousal of unpopular causes has resulted in persecution of too many individuals in our free society.' Henry Abraham has reminded us that the paradox of the underlying philosophy of freedom of expression in America,
"is that throughout history we so often permit, wink at, even encourage, its violation in practice. Thus we have been quite willing to curb the 'dangerous,' the 'seditious,' the 'subversive,' the 'prurient,' the 'obscene,' the 'libelous,' and a host of other presumably undesirable modes and manners of expression that-at a particular time and place-seemed to justify repression."
The concept of "speech plus" is characterized by what is loosely termed "civil-disobedience." It is nonverbal action which takes on the attributes of free speech. This is not to suggest that "speech plus" is the only area in which conflicting interpretations of the First Amendment have arisen. It does suggest, however, that, within the context of current American thinking, the principles established by the Supreme Court are clearer when the issue concerns "pure speech" than when it relates to conduct in the shape of expression of opinion. One must understand that speech may include other acts and conduct as manifested in meetings, parades, demonstrations, and sit-ins." Whether these actions may be protected by the First Amendment doctrine of free speech is the major concern of this article. This question, of course, gives rise to others: If nonverbal conduct is protected, under what circumstances may that protection be withdrawn? When does the right of the government to regulate a complex society supercede an allegation of injustice so as to justify the stifling of dissent? Is there a consistent pattern of judicial precedent on which either the dissenter or the government can rely? If there is not, is it possible in the context of our judicial system to develop such guidelines?
"is that throughout history we so often permit, wink at, even encourage, its violation in practice. Thus we have been quite willing to curb the 'dangerous,' the 'seditious,' the 'subversive,' the 'prurient,' the 'obscene,' the 'libelous,' and a host of other presumably undesirable modes and manners of expression that-at a particular time and place-seemed to justify repression."
The concept of "speech plus" is characterized by what is loosely termed "civil-disobedience." It is nonverbal action which takes on the attributes of free speech. This is not to suggest that "speech plus" is the only area in which conflicting interpretations of the First Amendment have arisen. It does suggest, however, that, within the context of current American thinking, the principles established by the Supreme Court are clearer when the issue concerns "pure speech" than when it relates to conduct in the shape of expression of opinion. One must understand that speech may include other acts and conduct as manifested in meetings, parades, demonstrations, and sit-ins." Whether these actions may be protected by the First Amendment doctrine of free speech is the major concern of this article. This question, of course, gives rise to others: If nonverbal conduct is protected, under what circumstances may that protection be withdrawn? When does the right of the government to regulate a complex society supercede an allegation of injustice so as to justify the stifling of dissent? Is there a consistent pattern of judicial precedent on which either the dissenter or the government can rely? If there is not, is it possible in the context of our judicial system to develop such guidelines?
Description
Citation
Richard E. Shugrue, An Inquiry into a Principle of "Speech Plus," 3 Creighton L. Rev. 267 (1970).