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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
VOLUME 56                      1988                          No. 3

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)


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