The Adversary First Amendment: Free Expression and the Foundations of American Democracy

The Adversary First Amendment: Free Expression and the Foundations of American Democracy

The Adversary First Amendment: Free Expression and the Foundations of American Democracy

The Adversary First Amendment: Free Expression and the Foundations of American Democracy

Synopsis

The Adversary First Amendment presents a unique and controversial rethinking of modern American democratic theory and free speech. Most free speech scholars understand the First Amendment as a vehicle for or protection of democracy itself, relying upon cooperative or collectivist theories of democracy. Martin Redish reconsiders free speech in the context of adversary democracy, arguing that individuals should have the opportunity to affect the outcomes of collective decision-making according to their own values and interests.

Adversary democracy recognizes the inevitability of conflict within a democratic society, as well as the need for regulation of that conflict to prevent the onset of tyranny. In doing so, it embraces pluralism, diversity, and the individual growth and development deriving from the promotion of individual interests. Drawing on previous free speech scholarship and case studies of controversial speech, Redish advances a theory of free expression grounded in democratic notions of self-promotion and controlled adversary conflict, making a strong case for its application across such areas as commercial speech, campaign spending, and anonymous speech.

Excerpt

This book is the outgrowth of the last five years of my scholarship on the theory of free expression. In a certain sense, however, it is designed to serve as a prequel to much of my scholarly work on the First Amendment over the last forty years. It is in this book that I have, I believe, finally located the core first principles of political theory that have always provided the implicit framework for my writings on the First Amendment.

Many of the chapters find their origins in articles I have authored or coauthored in recent years, though in each case the final chapter represents a revised version of the prior works. In some cases, the individual chapters represent a synthesis of one or more articles with earlier scholarship. More important, the articles have been modified to bring them together as a coherent statement of the political foundations of the theory of free expression.

Portions of Chapters Two and Four grew out of my article, “Understanding Post’s and Meiklejohn’s Mistakes: The Central Role of Adversary Democracy in the Theory of Free Expression,” 103 Northwestern University Law Review 1303 (2009), coauthored with former student Abby Marie Mollen. Chapter Three is based on my article, “Commercial Speech, First Amendment Intuitionism and the Twilight Zone of Viewpoint Discrimination,” 41 Loyola Los Angeles Law Review 67 (2007). Chapter Five derives from my article, “‘Worse than the Disease’: The Anti-Corruption Principle, Free Expression, and the Democratic Process,” 20 William & Mary Bill of Rights Journal 1053 (2011), coauthored with former student Elana Nightingale Dawson. Finally, Chapter Six finds its origins in my essay, “Freedom of Expression, Political Fraud, and the Dilemma of Anonymity,” which first appeared in a volume entitled Speech and Silence in . . .

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