How might a judge apply the different theories of Freedom of Speech and Freedom of Expression in attempting to stay within the precedents of the rulings of the Supreme Court when attempting to decide a case.
We'll be glad to help you answer this question if you post the different theories you've learned about.
These are the theories I learned about that reflect this question. Absolutist theory, Ad hoc balancing theory, Preferred position balancing theory, Meiklejohnian Theory, Marketplace of ideas, Access theory, and Self-realization.
This site outlines each theory. It should help you answer this question.
http://www.uiowa.edu/~c019095/freespch.html
For instance, the absolutist theory demands that all speech be free and that a judge cannot abridge that freedom.
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When a judge is encountering a case involving freedom of speech and freedom of expression, they typically turn to legal precedents set by the Supreme Court to guide their decision-making process. Here's how a judge might apply the different theories of freedom of speech and expression, while also staying within those precedents:
1. Absolutist Theory: This theory upholds the idea that freedom of speech should have no limitations or restrictions. However, it's important to note that the Supreme Court has not consistently followed this theory. One famous example of the Court's departure from the absolutist stance is the case of Schenck v. United States (1919), where the Court ruled that "clear and present danger" could restrict free speech.
2. Marketplace of Ideas Theory: According to this theory, uninhibited and robust speech should be allowed as different ideas are freely debated in society's marketplace. The judge needs to consider whether the speech in question contributes to this marketplace and whether any regulation would hinder this robust exchange of ideas. The Supreme Court has cited the marketplace of ideas theory in cases like Abrams v. United States (1919).
3. Preferred Position Theory: This theory suggests that freedom of speech holds a privileged position in the hierarchy of constitutional rights and should receive significant protection. When applying this theory, judges weigh the competing values, interests, or rights at stake against the fundamental protection of freedom of speech. The Court recognized this theory in cases such as West Virginia State Board of Education v. Barnette (1943).
4. Incitement Theory: This theory focuses on speech that poses an imminent and likely danger of inciting unlawful actions. Judges consider if the speech in question directly incites harm or violence, and whether there is a clear link between the speech and the potential harm caused. The Brandenburg v. Ohio (1969) case established the "imminent lawless action" standard as a test for incitement.
5. Balancing of Interests Theory: Under this theory, judges weigh the competing interests that may be at odds with freedom of speech, such as national security, public safety, or the prevention of harm. They need to find a balance between protecting free expression and addressing the importance of other societal interests. In cases like United States v. O'Brien (1968), the Court employed a balancing test when evaluating restrictions on expressive conduct.
In summary, a judge would study prior Supreme Court rulings associated with these theories and compare them to the specific case at hand. They would critically analyze the facts, arguments, and relevant legal principles to make a decision that both respects the existing precedents and adequately considers the specific context and interests involved in the case.