About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

89 Minn. L. Rev. 1280 (2004-2005)
The First Amendment on the Tracks: Should Justice Breyer Be at the Switch

handle is hein.journals/mnlr89 and id is 1296 raw text is: Article

The First Amendment on the Tracks:
Should Justice Breyer Be at the Switch?
Lillian R. BeViert
Every participant at this symposium is familiar with the
doctrinal disorder that is First Amendment jurisprudence.
Each of us has struggled to make sense of the myriad views
about the Amendment's objectives and the ultimate ends that it
serves or ought to serve. Each of us has tried to understand the
doctrines and to make them cohere, even as we have watched
them proliferate. And as the opinions multiplied and the num-
ber of issues on which the Justices agreed seemed constantly to
diminish, each of us must have wondered whether it made any
sense at all to talk or think about what the Court had decided
with respect to this or that controversy.
I doubt that I am the only participant who has observed
with feelings disturbingly akin to despair as First Amendment
theories have multiplied, the case law has become ever more
chaotic, and consensus on fundamental issues has remained
elusive both on and off the Court. Yet, despite the doctrinal and
scholarly cacophony, I would argue that, until quite recently, it
has been possible to identify several consistent aspects of First
Amendment jurisprudence and to articulate plausible ration-
ales for them. In brief, they are as follows: First, the cases em-
bodied a negative conception of the Amendment. First Amend-
ment doctrine provided a shield that protected individuals from
government, not a sword that enabled them to prod it into ac-
tion. Second, the cases offered more protection from regulation
for some categories of speech, and no protection at all for oth-
ers. Despite protestations implying the contrary,1 the decisions
t John S. Shannon Distinguished Professor, University of Virginia Law
School. Copyright © 2005 by Lillian R. BeVier.
1. But, above all else, the First Amendment means that government has
no power to restrict expression because of its message, its ideas, its subject
matter, or its content. Police Dep't of Chi. v. Mosley, 408 U.S. 92, 95 (1972).

1280

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most