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Chapter 15


Chapter 15 discusses Thomas I. Emerson’s Expression-Action Theory. In this theory Emerson talks about the “chaotic state of First Amendment theory” (433, Tedford). He talks about the idea that the Supreme Court is not consistent in regards to the first amendment. Tedford and Herbeck state “A condition that…has resulted from the Supreme Court’s failure to formulate and apply any single theory to free-speech cases. The various tests uses by the court…not only are vague, Emerson says, but vary so much from case to case that they can hardly be described as a rule of law at all” (433). Emerson goes on to explain how the expression-action theory can remedy this problem. What I found interesting about this though was Emerson’s diagnosis of the problem.
I personally have heard of many Supreme Court cases surrounding the first amendment. I tried to look up exactly how many have been decided and couldn’t find an exact number. I did find this page that highlights SOME landmark cases, but there are many not included in the list. This got me thinking that maybe Emerson is correct. There is so much variation from case to case and that it’s hard to keep everything straight and consider it rule of law. The variation makes it hard to determine exactly what freedom of speech is and the bounds of the first amendment. That’s my opinion anyway, what do you all think about this?



“First Amendment Cases Decided by the U.S. Supreme Court.” California Anti-SLAPP Project, 28 Feb. 2016, www.casp.net/california-anti-slapp-first-amendment-law-resources/federal-first-amendment-cases-decided-by-the-u-s-supreme-court/.

Tedford, Thomas L., and Dale A. Herbeck. Freedom of Speech in the United States. 8th ed., Strata Publishing, Inc., 2017.

 

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