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56 U. Cin. L. Rev. 779 (1987-1988)
When the First Amendment is Not Preferred: The Military and Other Special Contexts

handle is hein.journals/ucinlr56 and id is 793 raw text is: UNIVERSITY OF CINCINNATI LAW REVIEW PUBLISHED QUARTERLY BY THE BOARD OF EDITORS VOLUME 56 1988 No. 3 WHEN THE FIRST AMENDMENT IS NOT PREFERRED: THE MILITARY AND OTHER SPECIAL CONTEXTS* Robert S. Marx Lecture University of Cincinnati College of Law April 22, 1987 C. Thomas Dienes** During the 1940s and the 1950s, the Supreme Court regularly spoke of the freedoms embodied in the first amendment as holding a preferred position.' While there was considerable ambiguity in * This article is an expanded version of a paper delivered as the Robert S. Marx Lecture at the University of Cincinnati College of Law on April 22, 1987. ** Professor of Law, George Washington University National Law Center; B.S. 1961, Loyola University, Chicago; J.D. 1964, Northwestern University; Ph.D. 1968, Northwestern University. I wish to express my appreciation to those members of the faculty of the National Law Center who participated in a faculty development committee colloquium at which this paper was presented. I also wish to thank Dean Jerome Barron and Professor Beth Nolan at the National Law Center and Professors Martin H. Redish and Mark V. Tushnet, who read and commented on a draft of this paper. Leesteffy Jenkins and Vernon Johnson, students at the National Law Center, provided valuable research assistance. 1. See McKay, The Preference for Freedom, 34 N.Y.U.L. REV. 1182 (1959). The origins of the preferred position doctrine are usually traced to ChiefJustice Stone's suggestion in United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938), that the usual presumption of constitutionality might have a narrower scope when legislation appears to be facially within one of the prohibitions of the Bill of Rights or when legislation restricts the ordinary political processes on which we rely as a corrective to legislative excesses. The doctrine of preferred position was really framed in Jones v. Opelika, 316 U.S. 584, 609 (1942) (Stone, CJ., dissenting), vacated, 319 U.S. 103 (1943) (per curiam). See Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943); see also Saia v. New York, 334 U.S. 558, 562 (1948) (in balancing the various community interests in passing on the constitutionality of local regulations, the courts should keep the freedoms of the first amendment in a preferred position); Marsh v. Alabama, 326 U.S. 501, 509 (1946) 779

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