Page 13 - Delaware Lawyer - Fall 2019

net media, defamation, privacy, infliction of emotional distress, appropriation of name or likeness, copyright, trademark, speech of prisoners, speech of lawyers and other participants in the legal system (I could go on, but you get the gist) — in the final analysis, free speech law is not that complicated, at least when distilled to its animating philosophical drivers.
I believe all of American free speech law may be reduced to a grand debate between two opposing and powerfully attractive conceptions of the meaning of “freedom of speech.” I assign the two competing ideas the nicknames the “or- der and morality theory” and the “mar- ketplace theory.” I have spent a large part of my life as a litigator, educator, scholar, citizen, spouse and father laboring to mediate and reconcile these two potent ideas. For me, this struggle is not just theoretical; it is personal. That’s why the title of my newest book includes the word “confessions.”
The “order and morality” conception
The “order and morality” conception of freedom of speech is grounded in the notion that freedom of speech cannot
be elevated above the “social compact.”
of freedom of speech is grounded in the notion that freedom of speech cannot be elevated above the “social compact” that binds us as a society. The order and morality theory posits that freedom of
speech, while important, remains subor- dinate to values of order and morality, as determined through the democratic pro- cess. The theory was elegantly articulated in one simple sentence in a 1942 Supreme Court opinion written by Justice Frank Murphy, in Chaplinksy v. New Hamp- shire.8 He described why some categories of expression deserve no constitutional shelter: “It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” 9
The high-water mark for the order and morality theory was the Supreme Court’s 1952 decision in Beauharnais v. Illinois,10 arising from my hometown, Chicago. Jo- seph Beauharnais was an Illinois racist, the leader of a Chicago racial supremacist group that called itself the White Circle League of America. Beauharnais dis- tributed leaflets in Chicago bearing the
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