Defamation, Libel Tourism and the SPEECH Act of 2010: The First ...

that was likely to lead to violence, Justice Holmes concluded that free expression of ideas must be tolerated unless the ideas presented a clear and present danger to society. However this limitation was found to be difficult to apply and ultimately the Supreme Court reformulated the test so that speech inciting violence could be suppressed only if it was intended and likely to result in imminent lawless action.²⁶

One of the leading twentieth-century free speech theorists was Professor Alexander Meiklejohn who articulated the democracy or self-government theory in 1948. Meiklejohn argued that First Amendment free speech was necessary in matters directly concerning self-government.²⁷ An individual, participating in democracy or self-government, must be able to express views and receive views stated by others, all with the goal of making an informed decision.²⁸ Under this theory, speech relating to criticism and comments about government officials and public policies is accorded the highest degree of protection.²⁹ There is a logical progression that leads to this conclusion: first, government controlled by the citizens is conducted through elected officials; second, the citizen’s primary control over government is through election of public officials; third, speech that informs electoral choice is essential for political control by the citizens, which, in turn, is the goal of democratic government.³⁰

However, by 1961 Meiklejohn expanded his free speech theory to include many more elements of speech that might indirectly affect as well as directly concern self-government. Consequently, education, science, philosophy, literature, arts, and all manner of individual or group expression could fall within the concept of protected First Amendment free speech if the speech affected self-government.³¹ In this expanded mode, it can be somewhat difficult to identify speech that is outside of the sphere of self-government. Professor Meiklejohn’s expanded definition of free speech was perhaps not entirely satisfactory because it lacked parameters and was unwieldy. This, of course, raises the issue of how far should freedom of speech extend beyond matters that are purely related to elections and government policies.

While Mill, Holmes, Brandeis, and Meiklejohn tend to be associated with instrumental theories of free speech, other scholars have focused on