'Live Free or Die'—Liberty and the First Amendment
30 Pages Posted: 4 Dec 2017
Date Written: November 29, 2017
In recent years, the Roberts Court has significantly elevated the level of protection for speech in a number of critical areas. As a consequence, legislative choices once understood to be well within the bounds of democratic decision-making are increasingly challenged as violating individual speech rights. This Article argues that we desperately need a compelling alternative theoretical mooring from which to analyze contemporary First Amendment controversies because, despite its undeniable appeal, the libertarian course of the First Amendment is unsustainable in the long run.
Toward that end, this Article sets forth a preliminary and provisional case that such an alternative requires committing to a nuanced articulation of the self-governance interest. Disputes at the cutting edge of First Amendment litigation would be recast in the register of separation of powers in recognition of the fact that the First Amendment cordons off certain spaces from government intervention not as an end in itself, but as a means to preserve the possibility of the republican form of government. Its negative liberties are granted in the service of ensuring that the political process by which legislative judgments are made is an open one. Two things follow from this insight. First, the First Amendment rights of individuals cannot be so extensive as to undermine the capacity of legislatures to serve their most basic function—reaching provisional decisions, after deliberation, on contested values. Second, to the degree that the text of the First Amendment protects a range of practices understood to be prerequisites for responsive and accountable governance, the jurisprudence must attend to preserving a balance among these various conditions. Individuals’ free speech rights ought not be so great as to undermine the co-equal rights—freedom of assembly, association, the press and the right of petition—secured by the text of the First Amendment, either directly or indirectly.
Keywords: First Amendment, Separation of Powers, First Amendment Coverage, Time, Place and Manner, Compelled Speech, Right of Association, Freedom of Speech, New Lochnerism, Commercial Speech, Judicial Review, Free Expression, Self-Government, Positive Liberty
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