About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1993 U. Chi. Legal. F. 25 (1993)
Half-Truths of the First Amendment

handle is hein.journals/uchclf1993 and id is 29 raw text is: Half-Truths of the First Amendment Cass R. Sunsteint Much of the law of free speech is based on half-truths. These are principles or understandings that have a good deal to offer, that have fully plausible origins in history and principle, and that have mostly salutary consequences. But they also have significant blind spots. The blind spots distort important issues and in the end disserve the system of free expression. In this essay, I deal with the four most important of these half-truths. (1) The First Amendment prohibits all viewpoint dis- crimination. (2) The most serious threat to the system of free ex- pression consists of government regulation of speech on the basis of content. (3) Government may subsidize speech on whatever terms it chooses. (4) Content-based restrictions on speech are al- ways worse than content-neutral restrictions on speech. Taken to- gether, these half-truths explain a surprisingly large amount of free speech law. All in all, they may do more good than harm. But they also obscure inquiry and at times lead to inadequate outcomes. The four half-truths are closely related, and it will probably be beneficial to understand their many interactions. Above all, I sug- gest that the doctrinal distinctions embodied in the half-truths are taking on an unfortunate life of their own; it is as if the doctrines are operating for their own sake. In some ways, the distinctions are threatening to lose touch with the animating goals of a system of free expression, prominently including the creation of favorable conditions for democratic government. Indeed, it sometimes seems as if free speech doctrine is out of touch with the question of whether the free speech principle is animated by identifiable goals at all. My effort to challenge the half-truths is spurred above all by a belief that whatever else it is about, the First Amendment is at least partly designed to create a well-functioning deliberative de- mocracy. When free speech doctrine disserves democratic goals, something is seriously amiss. t Karl N. Llewellyn Professor of Jurisprudence, University of Chicago Law School. Some of the discussion here draws on the more detailed treatment in Cass R. Sunstein, Democracy and the Problem of Free Speech (Free Press, 1993).

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.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most