Classical First Amendment Theory
The legal scholar now confronts a dizzying array of competing disciplines and approaches. Law has become a sort of meeting ground for academic ideas and trends. And because it has become an interdisciplinary crossroads—affected and infected by so many different influ-ences—law has become, as perhaps never before in American history, one of the most absorbing intellectual subjects.
—J. M. Balkin1
The United States Supreme Court has not singled out one overriding theoretical justification for free speech, although it has its favorites among the theories discussed in this chapter. Still, the Court has been quite eclectic in its use of these theories, leading theorist Thomas Emerson to make an observation some thirty years ago that is no less true today: “The outstanding fact about the First Amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases. ”2 Some commentators have been vexed by the Court's theoretical eclecticism, while others have viewed it as a strength of First Amendment jurisprudence.____________________