Our Imperiled Absolutist First Amendment

Abstract

For roughly half a century, First Amendment doctrine has provided Americans with unusually expansive protection for freedom of expression. In the wake of the divisive 2016 presidential election, this symposium contribution offers some tentative reflections on whether and how the current judicial consensus supporting this doctrinal structure could unravel—and why it may be particularly important in the current moment to prevent that from happening.

This Article pursues this inquiry, first, by highlighting the current understanding’s historical emergence against the backdrop of the Civil Rights Movement. The Article then explores three salient recent developments that could place increasing pressure on the current consensus view: (1) the problem of “fake news,” meaning deliberate propagation of manifestly false news stories that shape public opinion; (2) the apparent disinhibition of bigoted and hateful expression; and (3) the ongoing risk of both foreign and domestic terrorism and political violence more generally. Although speech-repressive solutions to these problems may well gain increasing popular appeal, weakening First Amendment protection in any of these areas could open the door to highly selective and discriminatory enforcement at different levels of government in our sharply divided polity. At the same time, because different sides of our divided polity hold divergent perceptions of what speech is most dangerous, erosion along any of these axes could increase pressure for reciprocal changes along the others.

Keywords: free speech, first amendment, fake news