The Closed and Shrinking Frontier of Unprotected Speech

66 Pages Posted: 20 Mar 2015

Date Written: December 1, 2014

Abstract

For at least the past seventy years, the boundaries of the Supreme Court’s First Amendment doctrine have been shaped by competing approaches to defining the protections afforded to low-value speech. Advocates of balancing and categorization produced a puzzling maze of precedent because the Court seemingly deemed both approaches valid. In three recent opinions, the Court has quietly and radically altered the landscape of the low-value speech doctrine. The Court has completely rejected the balancing approach in favor of a strict historical-categorical analysis. In doing so, the Court has effectively closed the frontier of categorically unprotected speech. In addition, the Court’s jurisprudence over the past half century has steadily diminished the instances of speech that fall within those categories that do exist. These two trends create a frontier of categorically unprotected speech that is both closed and shrinking. This article explores that trend and analyzes its implications for the future of the Court’s First Amendment jurisprudence.

Keywords: First Amendment, Free Speech, Supreme Court, Balancing, Categorizing, Obscenity

Suggested Citation

Moore, John, The Closed and Shrinking Frontier of Unprotected Speech (December 1, 2014). 36 Whittier L. Rev. 1 (2014), Available at SSRN: https://ssrn.com/abstract=2580193

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