Present First Amendment doctrine presumptively protects anything within the descriptive category “expression” from government regulation, subject to balancing against countervailing government interests. As government actions during the present War on Terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent—the expressive activity most integral to our constitutional design. At the same time, present doctrine fails to give a clear account of why the Constitution protects expressive autonomy and when that protection properly should yield to government interests, leading to an inconsistent and unsatisfying free speech regime. In this Article, Professor Gregory P. Magarian advocates a bifurcation of free speech doctrine: protect only political speech under the First Amendment, subject to no countervailing interest but the interest in sustaining political discourse itself; meanwhile, protect nonpolitical speech as a matter of substantive due process. This substantive due process proposal draws on the Supreme Court’s recent decision in Lawrence v. Texas, whose two principal contributions to the doctrine—firmly grounding due process protection in the value of personal autonomy and discrediting purely moral government regulations—provide a reliable basis for protecting nonpolitical speech alongside other behavior whose primary value lies in fostering personal autonomy. Shielding nonpolitical speech under the Due Process Clause rather than the First Amendment would allow courts to deepen the First Amendment’s protection of political speech while providing a more coherent and consistent rationale for protecting nonpolitical speech.
Volume 90 - No. 2
- Note: Copyrighted Laws: Enabling and Preserving Access to Incorporated Private Standards
- Note: Embracing Ambiguity and Adopting Propriety: Using Comparative Law To Explore Avenues for Protecting the LGBT Population Under Article 7 of the Rome Statute of the International Criminal Court
- Note: Getting Back to Basics: Recognizing and Understanding the Swing Voter on the Supreme Court of the United States
- The Value of the Standard
- The Substantially Impaired Sex: Uncovering the Gendered Nature of Disability Discrimination
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