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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

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