Monaghan, Henry P. First Amendment Due Process, 83 Harv. L. Rev. 518 (1970)

Abstract

Justice Felix Frankfurter once observed, “The history of American freedom is, in no small measure, the history of procedure.” Professor Henry Monaghan’s 1970 article highlighted for me the deft adjustment of procedural rules by the Supreme Court of the United States to protect substantive speech interests. As other scholars confirm, “procedure is power.” Early on in my legal studies, I had a rudimentary understanding of procedure’s power to govern how our rights are enforced and protected. But it wasn’t until I read Professor Monaghan’s article that I came to more fully appreciate the Court’s calibration of procedural levers to safeguard substantive liberties.