The tragic events of September 11th generated numerous proposals for greater security measures and increased police powers that might, if implemented, constrict the customary scope of free speech in the United States. Legitimate concerns for internal security have placed increased pressures on traditional constitutional protections for expressive activity. It is against this backdrop that this article presents a careful examination of the basic rationales for adopting constitutional level protections for free speech. The article analyzes the nature of, and many of the conflicts among, the traditional rationales for a constitutional right of free expression. It also suggests that much of the current confusion and incoherence in free speech jurisprudence is traceable to the uneasy relationship among these underlying rationales.
This article was published quite soon after September 11, 2001. It is designed to be read and understood by a wide range of attorneys, judges, academics, politicians and policy makers, and the journal in which it is published reflects this ambition. It became part of the continuing national debate regarding the appropriate balance between national security and civil liberties in our country's confrontation with global terrorism. It was reprinted, in full, in Swanson & Castle's annual 2002-2003 First Amendment Law Handbook, a compilation of the best First Amendment law scholarship of the preceding year.
Marin Roger Scordato, Free Speech Rationales After September 11th: The First Amendment in Post-World Trade Center America, 13 STANFORD L. & POL’Y REV. 185 (2002).