Document Type

Working Paper

Publication Date

12-12-2000

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

Since Holmes and Brandeis began articulating a broad vision of the Free Speech Clause of the First Amendment scholarly commentators have labored to offer a comprehensive overarching theory of freedom of expression In separate books Professor Steven Shiffrin and Professor Stephen Carter propose a renewed focus on dissent as the central value of the Free Speech Clause In Dissent Free Speech and the Continuing Search for the Central Meaning of the First Amendment Professor Ronald Krotoszynski examines and critiques these two dissent based theories The review essay questions the feasibility of any dissent based theory of free speech in light of significant definitional and operational difficulties associated with applying such a theory to concrete cases Moreover Professor Krotoszynski raises specific objections to Professor Shiffrins iteration of a dissent based theory of free speech With respect to Professor Carters proposals the review essay generally agrees with Professor Carters view that religiously motivated dissenters should enjoy the same free speech rights as secularly motivated dissenters At the same time however one should question whether contrary to Professor Carters assertions the community owes religiously motivated dissenters any special duty of care The review essay explores the potential importance of dissent to a viable theory of freedom of speech and concludes that although protecting dissent is an important part of the free speech project the project should not be defined solely in terms of facilitating dissent in large part because such an approach would prove less effective at protecting dissent than more openended theories of free speech such as those emphasizing democratic deliberation autonomy or the marketplace of ideas

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