The Brandenburg Paradigm and Other First Amendments

Abstract

This article addresses the fracturing of modern First Amendment law into multiple different sets of rules and rationales for the protection of speech, depending on what kind of speech is an issue. It is no longer accurate to say that there is one universal First Amendment jurisprudence; indeed, it is no longer accurate to say that there is one First Amendment. Today there are many different - often very different - First Amendments for different types of speech. On a practical level, this fracturing of First Amendment law creates difficulties only in that it requires litigators and judges addressing First Amendment issues to identify the category or categories into which a particular example of speech fits. But on a theoretical level, the fracturing of First Amendment jurisprudence is much more problematic. These theoretical problems arise because First Amendment jurisprudence is not just a collection of narrow rules and doctrines. These rules and doctrines are based on series of presuppositions about the nature of individuals, the proper relationship between the government and its citizens, the extent to which society should accept risks posed by dangerous or antisocial ideas, and the liability of speakers for the consequences of their speech. The problem is that the courts make one set of assumptions when dealing with one area of expression and very different (and often contradictory) assumptions when dealing with other areas of expression.

The article starts by describing the baseline for all free speech jurisprudence - the jurisprudence that applies to political advocacy. It then distills from the Court's major political speech cases a set of principles that will be called "the Brandenburg paradigm." The remainder of the article discusses whether the theoretical assumptions made in the Brandenburg paradigm should also be applied to areas of speech other than political advocacy. Several areas of expression are addressed specifically, including threats, obscenity, "teaching speech," and student speech in public schools. An assessment of these different speech categories indicates that there is no good reason to ignore the Brandenburg paradigm outside the political advocacy category. Indeed, there is one very good reason to apply the Brandenburg paradigm to the entire range of First Amendment issues: The assumptions that underlie Brandenburg - for example, that citizens control the government rather than vice versa, that citizens should develop their own value systems free of government coercion, and that the government should suppress ideas it dislikes only in the face of serious, concrete harms stemming from that expression - should not be regarded solely as artifacts of the First Amendment, but rather as indispensable elements of constitutional democracy itself.