should be assumed without controversy that the 

Garci tapes fall within the protection of the free

expression clause.

Much has been said in homage to the right to free expression. It is precisely the underlying reason I
can write this submission, and the reader can read this opinion or any news account concerning the
decision and its various separate opinions. The revolutions we celebrate in our history books were
animated in part by an insistence that this right should be recognized as integral. 12 The right inheres
in the first yawl of the newborn infant, and allows a person to speak honestly in the throes of death.

In 20th century American jurisprudence, the right to free speech and expression has been rightly
linked to the inalienable right to liberty under the due process clause. 13 Indeed, liberty cannot be
actualized unless it encompasses liberty of speech and expression. As a consequence, the same
methodology as applied to due process and equal protection cases may hold as well to free
expression cases.

In my view, the operative principles that should govern the adjudication of free expression cases are
uncomplicated. The infringement on the right by the State can take the mode of a content-based
regulation or a content-neutral regulation. With respect to content-based regulations, the only
expressions that may be proscribed or punished are the traditionally recognized unprotected
expressions - those that are obscene, pose danger to national security or incite imminent lawless
action, or are defamatory.14 In order that such unprotected expressions may be restrained, it must be
demonstrated that they pose a clear and present danger of bringing about a substantive evil that the
State has a right and duty to prevent, such danger being grave and imminent as well. But as to all
other protected expressions, there can be no content-based regulation at all. No prior restraint, no
subsequent punishment.