Free Speech Fundamentalism - Justice Linde's Lasting Legacy
![handle is hein.journals/orglr70 and id is 883 raw text is: REX ARMSTRONG*
Free Speech Fundamentalism-Justice
Linde's Lasting Legacy
H ANS Linde published two articles in 1970, the contents of
fwhich figured prominently in his work on the Oregon
Supreme Court from 1977 through 1989. One was principally di-
rected to Oregon attorneys and courts. It sought to identify the
logical sequence to be followed in analyzing whether state or local
governmental action is lawful.'
The other was directed to constitutional scholars and, ultimately,
to the United States Supreme Court. It sought to establish a defen-
sible, absolutist analysis of the first amendment guarantee of free-
dom of speech.2
Ironically, the analysis embodied in the article for Oregon attor-
neys and courts has had a profound effect on the development of
state constitutional law throughout the country, not just in Oregon,
while, to date, the analysis directed to constitutional scholars and
the Supreme Court has had an effect only in Oregon. On reflection,
this should not be surprising.
Notwithstanding recent experience, the Supreme Court generally
does not make dramatic shifts in the methodology by which it ana-
* Attorney in private practice in Portland, Oregon, with the firm of Bogle & Gates.
B.A., 1974, University of Pennsylvania; J.D., 1977, University of Oregon. Mr. Arm-
strong clerked for Justice Linde after graduating from law school and was involved as
an attorney in a number of the Oregon cases involving freedom of expression that are
discussed in this article. He received a Hugh M. Hefner First Amendment Award in
1988 for his work in these Oregon cases, and nominated Justice Linde to receive one of
the 1990 Hugh M. Hefner First Amendment Awards, which Justice Linde received. In
sum, Mr. Armstrong is not an entirely disinterested analyst of Justice Linde's work in
the development of Oregon constitutional law on freedom of expression.
I See Linde, Without Due Process-Unconstitutional Law in Oregon, 49 OR. L.
REV. 125 (1970) [hereinafter Linde, Without Due Process].
2 See Linde, Clear and Present Danger Reexamined: Dissonance in the Branden-
burg Concerto, 22 STAN. L. REV. 1163, 1183 n.66 (1970) [hereinafter Linde, Clear and
Present Danger]; see also Baker, Unreasoned Reasonableness: Mandatory Parade Per-
mits and Time, Place, and Manner Regulations, 78 Nw. U.L. REV. 937, 940 & n.10
(1983).
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Free Speech Fundamentalism - Justice Linde's Lasting Legacy
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