The Constitution of Electoral Speech Law: The Supreme Court and Freedom of Expression in Campaigns and Elections

The Constitution of Electoral Speech Law: The Supreme Court and Freedom of Expression in Campaigns and Elections

The Constitution of Electoral Speech Law: The Supreme Court and Freedom of Expression in Campaigns and Elections

The Constitution of Electoral Speech Law: The Supreme Court and Freedom of Expression in Campaigns and Elections

Synopsis

Bush v. Gore brought to the public's attention the significance of election law and the United States Supreme Court's role in structuring the rules that govern how campaigns and elections function in America. In this book, Brian K. Pinaire examines one expanding domain within this larger legal context: freedom of speech in the political process, or, what he terms, electoral speech law.

Specifically, Pinaire examines the Court's evolving conceptions of free speech in the electoral process and then traces the consequences of various debates and determinations from the post-World War II era to the present. In his analysis of the broad range of cases from this period, supplemented by four recent case study investigations, Pinaire explores competing visions of electoral expression in the marketplace of ideas, various methods for analyzing speech dilemmas, the multiple influences that shape the justices' notions of both the potential for and privileged status of electoral communication, and the ultimate implications of these Court rulings for American democracy.

Excerpt

As a good friend and teacher of mine determined in the preface to one of his books (and this would be the only thing that his opus and my modest effort have in common), “every book needs an excuse …” and so the excuse I offer for The Constitution of Electoral Speech Law is that the complexity and distinction of this legal domain have not been sufficiently appreciated (or examined), meaning that electoral speech has tended to be subsumed within either the general categories of “free speech” or “electoral process” jurisprudence. in failing to evaluate electoral speech law as the particular intersection of both its contributing doctrinal lines, one misses what I contend is its two-fold significance for American democracy: that it implicates the means by which a polity deliberates and makes decisions (freedom of expression), and it keeps those structures and practices in place to record collective preferences and reflect the public will (campaigns and elections). Thus, my “excuse” for this work confronts us every election day; with every broadcast of the evening news during campaign season; every time we attend a campaign rally; perhaps each time we hope to be involved in the political process, but are confined by the nature of our employment; as we distribute leaflets, post signs, or write checks in support of our preferred candidate; and through the myriad other means by which we attempt or desire to express ourselves within the electoral process.

Before proceeding to elaborate on the substantive aims of this work, allow me to state what this book is not about. This study is not a work of normative theory. It is not my intention here to devise a system of metaprinciples—airtight in the abstract—only to apply them to the considerations and conclusions of the Supreme Court, which would, of course, be faulted for failing to have decided particular cases within my proffered theoretical parameters or in accord with my political or philosophical disposition. Books and law review articles setting out some grand design . . .

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