Chapter

Open Questions

in Free Expression and Democracy in America

Published by University of Chicago Press

Published in print October 2008 | ISBN: 9780226240664
Published online March 2013 | e-ISBN: 9780226240749 | DOI: http://dx.doi.org/10.7208/chicago/9780226240749.003.0013
Open Questions

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The legal doctrines and theories of free expression under pluralist democracy remain in flux. In the realm of free-expression doctrine, at least three major questions persist. First, should the Court eliminate the two-level approach, which presumes that expression is constitutionally protected unless it falls into a low-value category, like obscenity or fighting words? Second, assuming that the Court retains the two-level doctrine, should the justices recognize additional low-value categories, thus placing more expression outside of first-amendment protections? Third, should the Court elaborate the two-level doctrine so that it becomes a trilevel or multilevel approach?

Keywords: free expression; pluralist democracy; legal doctrine; two-level doctrine; first amendment

Chapter.  3690 words. 

Subjects: Constitutional and Administrative Law

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