Freedom of Speech: A Reference Guide to the United States Constitution

By Keith Werhan | Go to book overview

6

The Procedural First Amendment

'“The history of American freedom,' Mr. Justice Frankfurter once
observed, 'is, in no small measure, the history of procedure.'… Responding
to this realization, courts have… constructed] a body of procedural law which
defines the manner in which they and other bodies must evaluate and resolve …
first amendment 'due process'.”

Henry P. Monaglmn*

The Supreme Court has codified First Amendment jurisprudence not only by developing special rules for particular categories of speech content, but also by categorizing free speech doctrine according to the varying nature of the restrictions that governments impose on speech. The justices have recognized that particular types of speech regulation, like certain categories of speech, raise distinctive First Amendment issues. They also have recognized that different methods of speech regulation, like different types of speech content, create differing degrees of First Amendment concern, thus warranting distinct levels of judicial scrutiny. But there is a difference between categorizing speech content and speech regulation: When assessing speech content, the Court begins from a baseline of full First Amendment protection and inquires whether a particular category of speech dictates a retreat from that norm. When the Court examines the nature of a speech restriction, the justices may heighten as well as lower the level of constitutional protection generally afforded free speech.

We have already seen the Court's most important doctrine categorizing governmental restrictions on speech—the content distinction principle. That doctrine is grounded on the judicial sense that restrictions predicated on (he government's desire to limit or to eradicate a specific speech content are more likely censorial than are restrictions that the government imposes without regard to the content of speech. Thus content-based distinctions are presumptively unconstitutional and are

-129-

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Freedom of Speech: A Reference Guide to the United States Constitution
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Series Foreword xi
  • Foreword xv
  • Acknowledgments xix
  • 1: A History of Freedom of Speech in the United States 1
  • 2: What Makes Freedom of Speech Special? 27
  • 3: The Problem of Subversive Advocacy and the Central Meaning of Freedom of Speech 43
  • 4: The Central Organizing Principles of Free Speech Jurisprudence 69
  • 5: The Codified First Amendment 81
  • 6: The Procedural First Amendment 129
  • Afterword 149
  • Bibliographical Essay 151
  • Table of Cases 167
  • Index 173
  • About the Author 177
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