Document Type

Working Paper

Publication Date

10-11-2012

SSRN Discipline

Legal Scholarship Network; PSN Subject Matter eJournals; Social Insurance Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Political Science Network; Political Behavior eJournals

Abstract

The First Amendment protects speech that plainly has very little objective social value From a purposive or utilitarian perspective affording low value speech substantial First Amendment protection makes little sense In my view however US free speech doctrine and theory does not protect speech on utilitarian or costbenefit grounds but rather as one part of a larger legal framework designed to limit and check government power in hopes of avoiding its abuse In many respects US free speech law serves as a kind of structural bulwark akin to the separation of powers and federalism designed to prevent government from acting in an arbitrary or unjust manner The essay posits that a deep seated and longstanding distrust of government at all levels best explains the US approach to freedom of speech "“ just as it has explanatory force with respect to significant aspects of government structure at the state and federal level in the United States Accordingly challenging the prevailing free speech orthodoxy on utilitarian or costbenefit grounds is unlikely to win over many converts because these arguments fail to address or engage the fear of government abuse of power that undergirds the remarkably broad protection afforded even obviously worthless or affirmatively socially harmful speech

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