Abstract

http://ssrn.com/abstract=1370435
 


 



Closing the Barn Door after the Genie is Out of the Bag: Recognizing a 'Futility Principle' in First Amendment Jurisprudence


Eric Easton


University of Baltimore - School of Law

Fall 1995

DePaul Law Review, Vol. 45, No. 1, 1995

Abstract:     
This article argues for a simple proposition: the First Amendment imposes a presumption against the suppression of speech when suppression would be futile. Suppression is futile when the speech is available to the same audience through some other medium or at some other place. The government can overcome this presumption of futility only when it asserts an important interest that is unrelated to the content of the speech in question, and only when the suppression directly advances that interest.

In Part I, the article explores the role that this unarticulated "futility principle" has played in Supreme Court and other decisions concerning the suppression of core political speech by prior restraint, denial of access, and subsequent punishment. In addition, Part I demonstrates how that principle has often, though not always, been disregarded by the Court in cases involving the regulatory suppression of commercial speech. In Part II, the article more fully articulates the rule developed by the case law and justifies its wider application by reference to the values it supports. Finally, in Part III, the article applies the rule to actual situations involving computer-assisted communications technology, an integral part of the convergent communications environment that will soon be upon us.

Number of Pages in PDF File: 65

Keywords: futility principle, public information, First Amendment, commercial speech, Internet, media, courts

JEL Classification: K19, K29, K39, K49

working papers series


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Date posted: April 15, 2009  

Suggested Citation

Easton, Eric, Closing the Barn Door after the Genie is Out of the Bag: Recognizing a 'Futility Principle' in First Amendment Jurisprudence (Fall 1995). DePaul Law Review, Vol. 45, No. 1, 1995. Available at SSRN: http://ssrn.com/abstract=1370435 or http://dx.doi.org/10.2139/ssrn.1370435

Contact Information

Eric Easton (Contact Author)
University of Baltimore - School of Law ( email )
1420 N. Charles Street
Baltimore, MD 21218
United States
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