Document Type

Article

Publication Title

Journal of Law and Policy

Abstract

Part I of this article provides a snapshot of the current state of free speech protection, briefly noting the seminal cases, and summarizing free speech jurisprudence since the emergence of modern strict scrutiny in Brandenburg, Cohen v. California, and Texas v. Johnson. Part II reviews the speech-protective rules—both facial and as applied—that First Amendment lawyers like me routinely invoke in modern free speech cases. Part III briefly describes the five First Amendment procedural corollaries and the seminal cases in which the Court first recognized them. I argue that, given the purpose for which they were created, the procedural corollaries, especially First Amendment overbreadth, vagueness, and equality, should be deployed facially only in settings where the free speech rights of vulnerable, out-of-court speakers or hearers are endangered by the very existence of flawed First Amendment regulatory procedures. In the absence of a need to protect vulnerable out-of-court speakers, I believe the Court should be reluctant to provide a procedural windfall to marginal speakers who’s own speech might well be subject to lawful regulation under strict scrutiny. Speakers like the cross burners in R.A.V. v. City of St. Paul, and the purveyors of cruelty to animals in United States v. Stevens, should, I believe, rise and fall on their own strict scrutiny free speech merits. Why give them a procedural windfall?

First Page

131

Volume

25

Publication Date

2016

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