The Checking Value in First Amendment Theory

Abstract

The author examines the sources and premises of the idea that free expression has value in part because of the function it performs in checking the abuse of official power (the “checking value”) and explores how this checking value difyers from those values that have dominated First Amendment analysis since 1919. In addition, the author traces in some detail the uneven influence the checking value has had recently in three areas of First Amendment adjudication: civil actions f o r defamution; disputes arising from efforts by journalists to protect or establish relationships with news sources; and claims b y nonjournalists to a constitutional or statutory right to communicate directly to the public over major print or broadcast outlets. The author argues that the checking value must receive open, systematic consideration if it is to play a consistent part in adjudication and speculates on how such consideration of the checking value might help one think about a wide range of additional First Amendment questions.