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9 Comm. L. & Pol'y 1 (2004)

handle is hein.journals/comulp9 and id is 1 raw text is: 






COMMUNICATION LAW AND POLICY
Volume 9                 Winter 2004                Number 1
Copyright © 2004 Lawrence Erlbaum Associates, Inc.





STANDING AT THE CROSSROADS:
SOCIAL SCIENCE, HUMAN AGENCY
AND FREE SPEECH LAW


MATTHEW D. BUNKER*
DAVID K. PERRY**


        The disjunction between First Amendment free speech
        thought, in which the human self is conceived as
        rational and autonomous, and empirical social
        scientific notions of human thought and action, which
        tend toward a more causally deterministic view, poses
        great difficulties. After examining several recent court
        cases that confront this theoretical disjunction, this
        article analyzes the conflicting First Amendment
        standards that may apply in such cases, including the
        incitement test enunciated in Brandenburg v. Ohio and
        First Amendment strict scrutiny. Next, the article
        analyzes a variety of philosophical positions on the issue
        of human free will. Finally, it identifies and discusses a
        number of key questions in the debate and offers
        suggestions for further research.

  The intersection of social science and the law has long been contro-
versial. The extent to which social scientific methods and theoretical
structures can or should contribute to the law has been contested in
American legal thought since the early twentieth century.1 At the



  *Reese Phifer Professor of Journalism, University of Alabama.
  **Associate Professor of Journalism, University of Alabama.

  1For an interesting discussion of the interaction between legal studies and com-
munication research, see JEREMY COHEN AND TIMOTHY GLEASON, SOCIAL RESEARCH
IN COMMUNICATION AND LAW (1990). See also PAUL L. ROSEN, THE SUPREME COURT

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