29 Harv C.R.-C.L. L. Rev. 169 (1994)
First Amendment Formalism is Giving Way to First Amendment Legal Realism

handle is hein.journals/hcrcl29 and id is 179 raw text is: FIRST AMENDMENT FORMALISM IS GIVING WAY TO
FIRST AMENDMENT LEGAL REALISM*
Richard Delgado**
In her article In the Defense of Freedom and Equality,' Professor
Strossen, President of the ACLU, sets out to explain some of the contro-
versies currently flaring, both inside and outside that organization, over
its First Amendment advocacy. To critics who charge that recently the
organization has been balancing its commitment to free speech against its
commitment to other values, she responds that this is nothing new. The
ACLU has always championed these other values, including civil rights
and equality.2 Yet the group is not flagging in defense of free speech,
either. It is near-absolutist about this3-although not single-mindedly so.4
Is there a conflict between promoting equality and the rights of hate
speakers and pornographers? No, she says,5 but if there ever should be
one, we can accommodate both by choosing the least speech-restrictive
method that will offer the victimized group a degree of protection.6
Her tone is reassuring and conciliatory. She presents a picture of the
ACLU as a happy family, its internal struggles as healthy disagreement.
Affiliates that have broken with the national position and endorsed cam-
pus speech codes, for example, have in reality not strayed so far.7 The
ACLU is merely adjusting its ground slightly, arranging its position a few
degrees this way or that along the continuum of First Amendment vigi-
lance.
What she says may be true, even laudable, as an attempt to keep the
members of the ACLU at peace with each other and focused on common
goals. But there is another, far more intellectually intriguing explanation
for the rifts and tugs-of-war taking place inside the ACLU over issues
such as pornography and hate speech that are testing the limits of First
Amendment orthodoxy. In this other vision, the skirmishes are not so
much questions of standing one's ground, as some of the old-timers see
* This Article is a response to Nadine Strossen, In the Defense of Freedom and
Equality: The American Civil Liberties Union Past, Present and Future, 29 HARV.
C.R.-C.L. L. REv. 143 (1994).
** Charles Inglis Thomson Professor of Law, University of Colorado; J.D., University
of California-Berkeley.
I Nadine Strossen, In the Defense of Freedom and Equality: The American Civil
Liberties Union Past, Present and Future, 29 HARV. C.R.-C.L. L. REv. 143 (1994).
21d. at 146-47.
3 Id. at 152-53.
4 Id. at 153.
51d. at 149-51.
6 See id. at 154.
71d. at 155-56.

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