Like others of its genre, this anthology has evolved with the objective of contextualizing and enriching study and understanding of the law. The First Amendment represents what the Supreme Court has characterized as ''the matrix, the indispensable condition of nearly every other form of freedom.'' Palko v. Connecticut, 302 U.S. 319, 327 (1937). With so much of consequence at stake, and resolution frequently driven by choice and prioritization of competing values and interests, it is not surprising that First Amendment literature is characterized by heavy volume, much ideology and considerable passion. As much as, if not more than, other areas of legal commentary, output tends to be as ''uninhibited, robust, and wide-open'' as the First Amendment itself contemplates.
The extent and quality of First Amendment literature provides a significant challenge to the selection process that ultimately defines an anthology. Content decisions for this anthology have been driven by concern with a work's accessibility to students, capacity to generate critical reflection, and potential for stimulating classroom discussion. The aim of the editing process has been to reconcile imperatives of economy with the breadth and depth of each author's vision and purpose. At the end of each section, a bibliography provides a departure point for further exploration of relevant issues.
The sum of efforts resulting in this anthology includes significant contributions by persons other than the editors. Fran Molnar at The University of Toledo College of Law was the linchpin for coordinating the collection and processing of the materials. Gwen Ausby and Roseann Raniere at Rutgers University School of Law were bulwarks of secretarial strength. Tracie Jackson of The University of Toledo College of Law, Lysette Toro of Rutgers University School of Law and Chris Hutchinson, Kim Rodman and Michael Whiteman of the University of Louisville School of Law provided invaluable research assistance. Each of the editors welcomes reader feedback.
View Author Bio
Lively, Donald E. (Ed.) : University of Toledo
Professor of Law, University of Toledo
Roberts, Dorothy E. (Ed.) : State University of New Jersey
Associate Professor of Law, Rutgers, The State University of New Jersey
Weaver, Russell L. (Ed.) : University of Louisville
Professor of Law, University of Louisville
View Table of Contents
PART I. First Amendment Concepts and Ideology
A. The Value of Expressive Freedom
Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 SUPREME COURT REVIEW 245 (1961)
Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 INDIANA LAW JOURNAL 1 (1971)
Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE LAW JOURNAL 877 (1963)
C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA LAW REVIEW 964 (1978)
Martin H. Redish, Freedom of Expression: A Critical Analysis (1984)
Gerald A. Berlin, Book Review: Leonard W. Levy, Legacy of Suppression, 72 YALE LAW JOURNAL 631 (1963)
Leonard W. Levy, The Legacy Reexamined, 37 STANFORD LAW REVIEW 767 (1985)
William T. Mayton, From a Legacy of Suppression to the ''Metaphor of the Fourth Estate, 39 STANFORD LAW REVIEW 139 (1986)
C. The Nature of Speech
C. Edwin Baker, Scope of the First Amendment of Speech, 25 UCLA LAW REVIEW 964 (1978)
Melville B. Nimmer, The Meaning of Symbolic Speech Under the First Amendment, 21 UCLA LAW REVIEW 29 (1973)
Kent Greenawalt, O'er the Land of the Free: Flag Buming As Speech, 37 UCLA LAW REVIEW 925 (1990)
D. The Nature of the Press
Potter Stewart, ''Or of the Press, '' 26 HASTINGS LAW JOURNAL 631 (1975)
David Lange, The Speech and Press Clauses, 23 UCLA LAW REVIEW 77 (1975)
William J. Brennan, Jr., Address, 32 RUTGERS LAW REVIEW 173 (1979)
E. Prior Restraint
Thomas I. Emerson, The Doctrine of Prior Restraint, 20 LAW AND CONTEMPORARY PROBLEMS 648 (1955)
Vincent Blasi, Toward a Theory of Prior Restraint: The Central Linkage, 66 MLNNESOTA LAW REVIEW 11 (1981)
John Calvin Jeffries, Jr., Rethinking Prior Restraint, 92 YALE LAW JOURNAL 409 (1983)
PART II. Speech Classification and Content Regulation
A. Categorizing Speech
Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VANDERBILT LAW REVIEW 265 (1981)
John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARVARD LAW REVIEW 1482 (1975)
Pierre J. Schlag, An Attack on Categorical Approaches to Freedom of Speech, 30 UCLA LAW REVIEW 671 (1983)
B. Political Expression
Frank R. Strong, Fifty Years of ''C/ear and Present Danger:'' From Schenck to Brandenburg--and Beyond, 1969 SUPREME COURT REVIEW 41 (1969)
Gerald Gunther, Leamed Hand and the Origins of Modem First Amendment Doctrine: Some Fragments of History, 27 STANFORD LAW REVIEW 719 (1975)
Ernst Freund, The Debs Case and Freedom of Speech, 40 THE UNIVERSITY CHICAGO LAW REVIEW 239 (1973)
Harry Kalven, Jr., Upon Rereading Mr. Justice Black on the First Amendment, 14 UCLA LAW REVIEW 428 (1967)
C. Defamation and Privacy
Harry Kalven, Jr., The New York Times Case: A Note on ''The Central Meaning of the First Amendment, '' 1964 SUPREME COURT REVIEW 191 (1964)
Arlen W. Langvardt, Media Defendants, Public Concerns, and Public Plaintiffs: Toward Fashioning Order from Confusion in Defamation Law, 92 UNIVERSITY OF PITTSBURGH LAW REVIEW 91 (1987)
Rodney A. Smolla, Dun and Bradstreet, Hepps, and Ubeny Lobby. A New Analytical Primer on the Future Course in Defamation Law, 75 GEORGETOWN LAW JOURNAL 1519 (1987)
Diane L. Zimmerman, Requiem [or a Heavyweight: A Farewell to Warren and Brandeis Privacy Tort, 68 CORNELL LAW REVIEW 291 (1983)
Russell L Weaver & Geoffrey Bennett, Is The New York Times ''Actua/ Malice'' Standard Really Necessary? A Comparative Perspective, 53 LOUISIANA LAW REVIEW 1153 (1993)
D. Commercial Expression
C. Edwin Baker, Commercia/ Speech: A Problem in the Theory of Freedom, 62 IOWA LAW REVIEW 1 (1976)
Thomas H. Jackson and John Calvin Jeffries, Jr., Commercia/ Speech: Economic Due Process and the First Amendment 65 VIRGINIA LAW REVIEW 1 (1979)
Steven Shiffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 NORTHWESTERN UNIVERSITY LAW REVIEW 1212 (1983)
Burt Neuborne, The First Amendment and Government Regulation of Capital Markets, 55 BROOKLYN LAW REVIEW 5 (1989)
Lawrence Alexander & Daniel A. Farber, Commercia/ Speech and First Amendment Theo/y: A Critical Exchange, 75 NORTHWESTERN UNIVERSITY LAW REVIEW 307 (1980)
E. Obscenity and Pornography
William B. Lockhart and Robert C. McClure, Literature, The Law of Obscenity, and the Constitution, 38 MINNESOTA LAW REVIEW 295 (1954)
Louis Henkin, Morals and the Constitution: The Sin of Obscenity, 63 COLUMBIA LAW REVIEW 391 (1963)
Catharine A. MacKinnon, Pomography, Civil Rights and Speech, 20 HARVARD CIVIL RIGHTS CIVIL LIBERTIES LAW REVIEW 1 (1985)
Cass R. Sunstein, Pornography and the First Amendment, 1986 DUKE LAW JOURNAL 589 (1986)
Nadine Strossen, A Feminist Critique of ''the'' Feminist Critique of Pomography, 79 VIRGINIA LAW REVIEW 1099 (1993)
F. Hate Speech
Kenneth L Karst, Boundaries and Reasons: Freedom of Expression and the Subordination of Groups, 1990 UNIVERSITY OF ILLINOIS LAW REVIEW 95 (1990)
Charles R. Lawrence ill, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE LAW JOURNAL 431 (1990)
Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 85 NORTHWESTERN UNIVERSITY LAW REVIEW 343 (1991)
Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal? 1990 DUKE LAW JOURNAL 484 (1990)
Donald E. Lively, Reformist Myopia and the Imperative of Progress: Lessons for the Post-Brown Era, 46 VANDERBILT LAW REVIEW 865 (1993)
G. Use of Government Funds
Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARVARD LAW REVIEW 1413 (1989)
Richard A. Epstein, The Supreme Court, 1987 TermóForeword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARVARD LAW REVIEW 4 (1988)
Dorothy E. Roberts, Rust v. Sullivan and the Control of Knowledge, 61 GEORGE WASHINGTON UNIVERSITY LAW REVIEW 587 (1993)
PART III. Regulation of Modern Media
A. Prelude: Media Specific Concern
Louis D. Brandeis & Samuel D. Warren, The Right to Privacy, 4 HARVARD LAW REVIEW 193 (1890)
Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948)
B. Redistributing Expressive Opportunity
Jerome A. Barron, Access to the PressóA New First Amendment Right, 80 HARVARD LAW REVIEW 1641 (1967)
Charles D. Ferris and James A. Kirkland, FaimessóThe Broadcaster's Hippocratic Oath, 34 CATHOLIC UNIVERSITY LAW REVIEW 605 (1985)
Lee C. Bollinger, Jr., Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 MICHIGAN LAW REVIEW 1 (1976)
Mark Is. Fowler and Daniel L Brenner, A Marketplace Approach to Broadcast Regulation, 60 TEXAS LAW REVIEW 207 (1982)
Lucas A. Powe, Jr., American Broadcasting and the First Amendment (1987)
Stanley Ingber, The First Amendment in Modem Garb: Retaining System Legitimacy--A Review Essay of Lucas Powe's American Broadcasting and the First Amendment, 56 GEORGE WASHINGTON LAW REVIEW 187 (1987)
Note, Access to Cable, Natural Monopoly, and the First Amendment, 86 COLUMBIA LAW REVIEW 1663 (1986)
Daniel Brenner, Cable Television and the Freedom of Expression, 1988 DUKE LAW JOURNAL (1988)
C. Indecency and Violence
Thomas G. Krattenmaker and LA. Powe, Jr., Televised Violence: First Amendment Principles and Social Science Theory, 64 VIRGINIA LAW REVIEW 1 123 (1978)
Daniel A. Farber, Civilizing Public Discourse: An Essay on Professor Bickel, Justice Harlan, and the Enduring Significance of Cohen v. California, 1980 DUKE LAW JOURNAL 283 (1980)
Vincent Blasi, Six Conservatives in Search of the First Amendment: The Revealing Case of Nude Dancing, 33 WILLIAM AND MARY LAW REVIEW 611 (1992)
D. Future Media and the First Amendment
Ithiel de Sola Pool, Technologies of Freedom (1983)
Allen S. Hammond, IV, Regulating Broadband Communication Networks, 9 YALE JOURNAL OF REGULATION 181 (1992)
PART IV. Religious Freedom
A. Constitutional Origins 381
Philip B. Kurland, Of Church and State and the Supreme Court, 29 THE UNIVERSITY OFCHICAGO LAW REVIEW 1 (1961)
Michael E. Smith, The Special Place of Religion in the Constitution, THE SUPREME COURTREVIEW 83 (1983)
George C. Freeman, III, The Misguided Search for the Constitutional Definition of ''Religion'', 71 GEORGETOWN LAW REVIEW 1519 (1983)
B. Defining Religion
Jesse H. Choper, Defining ''Religion '' in the First Amendment, 1982 UNIVERSITY OF ILLINOISLAW REVIEW 579
George C. Freeman, ill, The Misguided Search for the Constitutional Definition of Religion, 71GEORGETOWN LAW REVIEW 1519 (1983)
C. Establishment and Exercise Clause Tension
Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUMBIA LAW REVIEW 1373 (1981)
Jesse H. Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41UNIVERSITY PITTSBURGH LAW REVIEW 673 (1980)
D. Establishment Clause Theory
Alan Schwarz, No Imposition of Religion: The Establishment Clause Value, 77 YALE LAWJOURNAL 692 (1968)
Jesse H. Choper The Establishment Clause and Aid to Parochial Schools, 56 CALIFORNIA LAWREVIEW 260 (1968)
William Van Alstyne, Trends in the Supreme Court: Mr. Jefferson's Crumbling Wall--A Comment on Lynch v. Donnelly, 1984 DUKE LAW JOURNAL 770 (1984)
E. Free Exercise Theory
Paul Marcus, The Forum of Conscience: Applying Standards Under the Free Exercise C/ause, 1973 DUKE LAW JOURNAL 1217 (1973)
Jesse H. Choper, The Free Exercise Clause: A Structural Overview and an Appraisal of RecentDevelopments, 27 WILLAM & MARY LAW REVIEW 943 (1986)
Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 THE UNIVERSITYOF CHICAGO LAW REVIEW 1109 (1990)
Douglas Laycock, Formal, Substantive and Disaggregated Neutrality Toward Religion, 39 DEPAUL LAW REVIEW 993 (1990)
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