ABSTRACT
Regardless of the excess and sensationalism that sometimes characterize media coverage of criminal trials, the fundamental importance of free expression in a democracy is beyond question. For many scholars, however, the theoretical and doctrinal bases of protecting free expression have often appeared inadequate to the task. In particular, the U.S. Supreme Court's development of a judicial approach to the protection of First Amendment freedoms has been a source of frustration to those who feel that free expression is one of the most basic and fragile rights in our constitutional system. Scholars have long lamented the fragmented state of the Supreme Court's First Amendment jurisprudence-the overall scheme of legal doctrine the Court employs to decide free expression questions. The great First Amendment scholar Thomas Emerson expressed this frustration in the 1960s:
One recurring theme, however, at least since the late 1930s, has been the notion that government must demonstrate some significant competing interest to limit certain types of speech. Judges using this approach to judicial review seek to balance the value of free expression against the need to implement other societal interests. Depending on the type of speech in question, the balancing test may require the competing interest achieve a given level of significance, whether "compelling," "substantial," or "important," or a variety of other descriptive terms, before the competing interest can override the strong interest in freedom of expression. Because judges using this type of review process claim to carefully analyze the strength of the need for government regulation of speech, this form of judicial review is often referred to as heightened scrutiny. Heightened scrutiny, which embraces a number of different standards of review, is a more searching form of judicial review than the Court uses in, for example, cases involving economic regulation. In such cases, in which no fundamental rights such as free expression are involved, the Court upholds legislation provided it has a "rational basis." In other words, the Court defers to the wisdom of the legislative body unless the legislation is manifestly unreasonable. Such deference is generally not the Court's modus operandi when First Amendment interests are at stake.
