1. Why we need Free Expression Law

   A.       Free Expression encourages and permits conflict.  However, people can't operate such a system without structure to prevent the escalation of conflict, domination by those with the most power, etc.

   B.       Principles/norms are needed so people know rights and limits in advance to avoid the "chilling effect."

   C.      Effective Free Expression requires learning norms and techniques for rational discourse, controlling conflict, etc. Law facilitates that.

   D.      Law is needed to limit government (or other BIG establishments) from dominating the communication field,

   1.  We need limits on restricting expression - There is clear history of government and other power groups attempting and succeeding in silencing legitimate opposition.

   2.  We need limits on government persuasion efforts which can overwhelm others by use of government power.

   3. We need limits on government creation of obstacles to open expression

   E.       Protection/development of the "rights of conscience" is philosophically central to the concept of the American spirit.

2.       History - Why is 1st Amend. Law mostly 20th Century?

A.        Industrialization led to concentration of power and thus a greater ability to find and coerce.

B.        Property rights (always a key in U.S.) become more intellectually based in the 20th Century

C.       Greater social organization and integration leaves the less organized individuals and groups weak without protections.

D.       The government is a greater threat to free expression now than in the past:  it's bigger, it controls more possible rewards and punishments, it has financial entanglement everywhere in society.

E.        Mass literacy arose in the 20th Century

1.  making role of expression more important

2.  but issues are more complex now

3.  thus, manipulation is easier (personal experience is a less useful guide).

4.  Dissent in a mass society can be hard to "get out." 

3.  Why is the Judiciary the Key?

1. Our system requires:

   1. a constitution (principles) and laws (conforming to the principles)

   2.  independent courts

   3.  an independent Bar
      

2. Courts have a special competence - disinterest and technical knowledge.
    

3. The Legislature and the Executive can't be trusted - They have  interests in getting their way  that may conflict with the general or individual public interest .
    

4. Pressure group "balance" doesn't insure Free Expression, esp. right of conscience.
    

5. With elected executive and legislative branches, courts are left to protect minorities (who m,ay be under-represented.