Document Type

Working Paper

Publication Date

2-6-2020

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Legal Anthropology eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Criminal Justice Research Network; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

The standard account of the First Amendment posits that the US Supreme Court consistently has expanded the scope of free speech rights over time This account holds true in some areas but not in others For example the contemporary Supreme Court rigorously enforces the rules against content and viewpoint discrimination for those who possess the wherewithal to speak At the same time however the Justices have been considerably less willing than their predecessors to interpret the First Amendment to impose affirmative obligations on the government to facilitate speech when it has the ability but not the will to do so For citizens who need the government's assistance in order to speak "“ for example wouldbe speakers who require access to public property to engage in protest activity "“ free speech rights have declined significantly under the Roberts and Rehnquist CourtsbrbrThe Warren Court and to some extent the Burger Court as well embraced openended balancing tests to decide First Amendment cases that implicated the government's managerial domain Using this approach the Warren Court pioneered First Amendment protection for government employees students and faculty members at the nation's public schools colleges and universities and transborder speech activity It also greatly expanded constitutionallymandated access to public property for protest and even recognized free speech easements to private property In all of these areas the Warren Court developed and deployed balancing tests that weighed the interests of wouldbe speakers against the government's legitimate interests in exercising managerial control over its resources This approach had the decided benefit of making it possible for more citizens many possessed of average means to participate meaningfully in the process of democratic selfgovernment brbrThe Disappearing First Amendment advances an empirical claim a doctrinal claim and a normative claim First as an empirical matter careful consideration of the relevant lines of authority shows that in many important areas First Amendment rights have declined rather than expanded over time Second in a wide variety of areas existing First Amendment rules could be significantly improved and strengthened to better protect wouldbe speakers from government efforts to distort the political marketplace of ideas Third and finally openended balancing tests that facilitate the ability of ordinary citizens to participate meaningfully in the process of democratic deliberation should be preferred at least in some contexts to bright line categorical rules that produce consistent results but a far less vibrant political marketplace of ideas If free and open democratic deliberation is essential to making elections an effective means of securing government accountability then the First Amendment should be interpreted and applied to protect more speech rather than less speech

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