The Dark Side of the Force: The Legacy of Justice Holmes for First Amendment Jurisprudence (original) (raw)
Related papers
2019
In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course. Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and unpopular political movements. Since Brandenburg, the Court’s jurisprudence has turned towards free-speech absolutism. Today, free-speech discourse focuses on the right of what is said without discussing what the effect of that discourse is. Rather than allowing the “market” to decide what is and is not acceptable within public discourse, ...
THEORIZING THE FIRST AMENDMENT: FROM ROGER WILLIAMS TO LARRY FLYNT
Studies in Law, Politics, and Society (journal), 2011
This chapter argues that the theoretical core of the First Amendment can be found in the concept of disestablishment, and that the meaning of disestablishment can be, and has been, extended from the religious sphere to the secular. It explores the historical development of rights of conscience and dissent, and the application of those rights to various changing historical circumstances, such as the development of political parties and the struggle over slavery. It then turns to an application of this analysis to several contemporary First Amendment controversies, including campaign finance and sexual expression.
SSRN Electronic Journal, 2016
's The Great Dissent retreads the familiar story of US Supreme Court Justice Holmes's First Amendment conversion between March and November 1919, when he launched his marketplace of ideas theory and strong-form version of the clear and present danger doctrine. Healy's book demonstrates that fresh perspectives on this vital and everintriguing change of mind or transformation on Holmes's part remain possible. The review offers its own perspective by highlighting the process of "reverse mentoring" which took place, in which the older jurist was mentored on free speech issues by the emerging thought leaders of the day-Laski, Frankfurter, Chafee-and showing how Justice Holmes's landmark dissent in Abrams was nonetheless and indisputably a product of his own jurisprudential ingenuity.
Osgoode Hall Law Journal, 2016
's The Great Dissent retreads the familiar story of US Supreme Court Justice Holmes's First Amendment conversion between March and November 1919, when he launched his marketplace of ideas theory and strong-form version of the clear and present danger doctrine. Healy's book demonstrates that fresh perspectives on this vital and everintriguing change of mind or transformation on Holmes's part remain possible. The review offers its own perspective by highlighting the process of "reverse mentoring" which took place, in which the older jurist was mentored on free speech issues by the emerging thought leaders of the day-Laski, Frankfurter, Chafee-and showing how Justice Holmes's landmark dissent in Abrams was nonetheless and indisputably a product of his own jurisprudential ingenuity.
Free Speech and Democracy: A Primer for Twenty-First Century Reformers
U.C. Davis Law Review, 2021
Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment's eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited -by both government and powerful private actors alike -as a tool for controlling others' speech and frustrating meaningful public discourse and democratic outcomes. The Court's longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites us to reconsider our answers to key questions and to adjust doctrine and theory to account for these changes. Yet there is a more or less to these re-imagining efforts: they may seek to topple, or instead to tweak, current theory and doctrine. Either route requires that reformers revisit the foundational questions underlying the Free Speech Clause: what, whom, and how does it protectand from whom, from what, and why? Part I of this Article discusses the threats to public discourse and democracy posed in the twenty-first-century speech environment, as well as the failure of traditional First Amendment theory and doctrine to adequately address these threats. Part II compares the advantages and † Copyright © 2021 Toni M. Massaro & Helen Norton. * Regent's Professor and Milton O. Riepe Chair in Constitutional Law, University of Arizona James E. Rogers College of Law. Warm thanks to Barbara A. Babcock, Genevieve Leavitt, Carol Rose, and Andrew Woods for their very thoughtful comments.
Democracy and the Freedom of Speech: Rethinking the Conflict between Liberty and Equality
The Canadian Journal of Law and Jurisprudence
This article re-examines the distinction between the libertarian approach and the egalitarian approach to the regulation of campaign finance. The conventional approach (as exemplified by the work of Owen Fiss and Ronald Dworkin) is to reconcile the competing values of liberty and equality. By contrast, this article advances the normative claim that democracies should seek to incorporate both the libertarian and the egalitarian approaches within constitutional law. I argue that instead of emphasizing one value over the other, the ideal position is one that simultaneously recognizes the values of liberty and equality despite the irreconcilable tension between them. Rather than choosing one value over the other, or reconciling these values by redefining them, I claim that it is vital to maintain the tension between liberty and equality by instantiating the conflict in law. Democracy is better served when the law contains an explicit tension between these foundational values.After setti...