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

By Keith Werhan | Go to book overview

5

The Codified First Amendment

[T]he diversity of communicative activity and governmental concerns is so wide as to
make it implausible to apply the same tests or analytical tools to the entire range of

First Amendment problems. This premise provides the impetus for making First
Amendment doctrine more precise and at the same time more complex, developing
tools and tests that are greater in number but consequently applicable to increasingly
smaller categories of First Amendment issues.

Frederick Schauer*

The interplay between the categorization and content distinction principles has led the Supreme Court to codify free speech doctrine. This codification, as Frederick Schauer recognized, carries both risk and reward for the development of a workable jurisprudence. On one hand, codification promotes consistency and predictability by systemizing First Amendment doctrine. On the other hand, categorization risks over-formalizing the doctrine and thus forcing outcomes in particular cases that betray rather than further free speech values. The promises and pitfalls of codification mirror each other: Codification offers to create, as it threatens to undermine, doctrinal coherence.

This chapter surveys the primary elements of the Supreme Court's codification of free speech doctrine by speech category. According to the usual workings of the content distinction principle, a strong presumption of unconstitutionality attaches whenever the government targets a particular category of speech for any special prohibition or restraint. The best avenue of escape from the nearly certain death that awaits such a law is a demonstration that the targeted category does not merit full protection by the First Amendment. The categorization principle invites such demonstrations. The justices' use of categorization over the years has resulted in a series of special doctrinal rules applicable to particular categories of speech. On occasion, as we have seen with respect to subversive advocacy, the Court has

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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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