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Advanced Introduction to Freedom of Expression

Mark Tushnet

The Advanced Introduction to Freedom of Expression provides an overview of major issues in the doctrinal structure of a law of freedom of expression, relevant to discussions of freedom of expression under many national constitutions. Assuming familiarity with basic theories of free expression, this book addresses the implications of reasonable disagreement between legislatures and courts about whether a specific measure violates freedom of expression, the implications of the fundamental proposition that speech can cause harm, the distinction between the coverage of freedom of expression and the protections it affords, and the appropriate doctrinal forms when speech is said to conflict with other rights such as equality, or merely other social interests. The book will be of interest to anyone, including students, teachers, researchers and policymakers wanting to learn more about the freedom of expression and the law.
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Subsidies and content-neutral regulations

Mark Tushnet


The discussion to this point has dealt almost entirely with regulations of speech based on its content. The reason is that judicial and scholarly consideration of content-based regulation began early and has been sustained at a sophisticated level for decades if not centuries. For just as long, though, there have been other forms of political protest – demonstrations and riots in the streets. Until the twentieth century free expression law said nothing about that form of expression – or, more accurately, regarded regulation of street demonstrations as entirely discretionary. Governments could allow demonstrations, regulate them however they chose, or ban them entirely. In one formulation, the government owned the streets and like any property owner had the power to do whatever it wanted with them.

The twentieth century saw the development of a law of free expression dealing with public demonstrations. The reasons are not entirely clear. One may have been a growing understanding on the part of governments that demonstrations were inevitable and that regulating them was more likely to promote social stability than banning them. Another may have been concern that demonstrations were one of the few modes of expression that people without many resources could easily use. These reasons, though, would support policy choices to regulate demonstrations, but they do not obviously support constitutional limits on such regulation.

Initially scholars and then courts concluded that free expression law required that such demonstrations be allowed but that reasonable ‘time, place, and manner’ regulations of demonstrations were...

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