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66 Minn. L. Rev. 171 (1981-1982)
Courts and Censorship

handle is hein.journals/mnlr66 and id is 215 raw text is: Courts and Censorship Hans A. Linde* L INTRODUCTION For half a century conventional wisdom in the United States has equated freedom of speech and of the press with its protection by courts under the first amendment. From its mod- est beginning in Near v. Minnesota,' a widening stream of Supreme Court decisions has left an impression, not only among the public and the press itself, but among some lawyers, that the law of the first amendment and the law of the press are the same thing. First amendment jurisprudence indeed has en- veloped some areas of private and public law to the point where the Constitution is not seen as a limit on the outer reach of substantive law, but rather the substantive law is assumed to reach whatever the first amendment does not protect. This happened in the 1940s to the law of picketing and twenty years later to defamation law and to the regulation of salacious en- tertainment. Anyone who deals with the laws of copyright, of securities regulation, of broadcast licensing, of fraud and per- jury and conspiracy needs no reminder that numerous issues of law and policy ordinarily precede the rare constitutional is- sue. But in the public folklore of our time, the first amendment is the law of expression and the judges are its guardians. The first amendment has served well in the hands of judges committed to freedom of expression, but that freedom is not well served by singleminded concentration on the first amendment as its first rather than its final protection nor on the courts as the single source of its governing law. This single- minded concentration on the first amendment needlessly foregoes other principles and sources of law. Concentration on the first amendment began by tran- scending the barriers of federalism, not without good reason, but at a price both in the shaping of first amendment doctrine * Associate Justice, Oregon Supreme Court. Judge Linde's Article re- tains its original format as prepared for an audience of journalists and histori- ans, as well as legal scholars. 1. 283 U.S. 693 (1931).

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