In rendering his opinion, Justice McKenna chose to uphold the process of censorship on the grounds that motion pictures were largely a business and that this was not a free speech issue. In part, this is due to very limited free speech opinions at the time and the state of infancy of the motion picture industry – silent films, short subjects, and limited accessibility.
We face much the same issue today with institutions like the internet and YouTube™. Is freedom of expression such a fundamental value-based doctrine that it should not be limited? What is free speech and how should society consider free speech? Is the U.S. Constitution’s approach of distinguishing between political free speech and commercial speech a sound approach or is free speech so fundamental a value that it should be unlimited? Think about examples in your everyday life where free speech is raised as an excuse for comment that might offend or concern you.
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