Substantive Due Process as a Source of Constitutional Protection for Nonpolitical Speech

46 Pages Posted: 24 Aug 2005

See all articles by Gregory P. Magarian

Gregory P. Magarian

Washington University in St. Louis - School of Law

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Present First Amendment doctrine presumptively protects anything within the descriptive category "expression" from government regulation, subject to balancing against countervailing government interests. As government actions during the present war on terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent - the expressive activity most integral to our constitutional design. At the same time, present doctrine fails to give a clear account of why the Constitution protects expressive autonomy and when that protection properly should yield to government interests, leading to an inconsistent and unsatisfying free speech regime. In this article, Professor Magarian advocates a bifurcation of free speech doctrine: protect only political speech under the First Amendment, subject to no countervailing interest but the interest in sustaining political discourse itself; meanwhile, protect nonpolitical speech as a matter of substantive due process. This substantive due process proposal draws on the Supreme Court's recent decision in Lawrence v. Texas, whose two principal contributions to the doctrine - firmly grounding due process protection in the value of personal autonomy and discrediting purely moral government regulations - provide a reliable basis for protecting nonpolitical speech alongside other behavior whose primary value lies in fostering personal autonomy. Shielding nonpolitical speech under the Due Process Clause rather than the First Amendment would allow courts to deepen the First Amendment's protection of political speech while providing a more coherent and consistent rationale for protecting nonpolitical speech.

Keywords: First Amendment, substantive due process, free speech, civil rights/liberties in wartime, political dissent

Suggested Citation

Magarian, Gregory P., Substantive Due Process as a Source of Constitutional Protection for Nonpolitical Speech. Minnesota Law Review, Vol. 90, Villanova Law/Public Policy Research Paper No. 2005-10, Available at SSRN:

Gregory P. Magarian (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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