Foreword, Exceptional Freedom — The Roberts Court, the First Amendment, and the New Absolutism
59 Pages Posted: 28 Apr 2013 Last revised: 29 Apr 2013
Date Written: March 11, 2013
Yesterday we had one view of the First Amendment; today we have another. Yesterday liberals hailed the First Amendment; today it is conservatives. Yesterday the First Amendment was the rallying cry of anti-federalists, abolitionists, Bolsheviks, Communists, and anti-war demonstrators; today it is the banner flown by corporations, big-money political PACs, tobacco companies, and advertising agents along with a motley crew of crackpots. Yesterday the liberty principle of the First Amendment coexisted with the equality principle of the Fourteenth Amendment; today they often war. Yesterday lofty free speech theories reigned; today various and varying judicial doctrines rule the roost. Yesterday the First Amendment was a treasured freedom; today many deem it to be an amendment in need of amending. And so it has come to pass.
“Nothing endures but change.” Heraclitus's maxim takes on new meaning in modernity. Change is here; modernity has arrived. The era of the Roberts Court and the First Amendment is well into the groove of its constitutional mark. To date, the work-product of the Court has produced twenty-nine First Amendment free expression opinions. Constitutional claims were sustained in 14% of those cases. While a notable portion of the cases in which claims were denied were rendered by a unanimous or near-unanimous vote, the Roberts Court has nonetheless been badly divided (and ideologically so) on several key issues such as student speech, government employee speech, and expression related to support for so-called anti-terrorism groups. In that cluster of cases the Court has diminished the staying power of the First Amendment. But in another class of cases involving certain kinds of content-discrimination, the Court has been quite vigorous in its defense of free speech freedom. What emerges from the latter is a new kind of First Amendment absolutism largely premised on the maxim that expression is protected unless it clearly falls within one of the traditional categories of unprotected speech. This “exceptional freedom” is the main focus of what follows in this Foreword. While it represents a new high water mark of constitutional protection for speech, it also signals a stark point of demarcation, on the other side of which certain kinds of speech receive little meaningful protection.
Keywords: constitutional law, free speech, freedom of speech, Supreme Court, First Amendment, Roberts Court
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