Scholarship@WashULaw

Document Type

Article

Publication Date

2005

Publication Title

Minnesota Law Review

Abstract

We live in a time when our right to speak out against our government faces threats unimagined since the Vietnam era. As the present war in Iraq and the campaign against international terrorism have dragged on, the federal and state governments as well as nongovernmental institutions have grown increasingly bold in their efforts to suppress political dissent. Law enforcement officers infiltrate and bully peaceful dissident groups; police crack down brutally on mass demonstrations; cities confine protesters at major political events to ironically designated “free speech zones.” These events buttress a contention, familiar from the work of several prominent First Amendment theorists, that the Supreme Court can succeed in protecting crucial political dissent under the First Amendment only by aiming its free speech jurisprudence primarily or even exclusively at protecting speech that contributes to political discourse. Unbinding political speech from expression whose regulation the government can more plausibly justify under the balancing analysis now applied in all free speech cases would maximize the Constitution’s protection for the category of expressive activity most central to the health of our democratic system.

Keywords

First Amendment, Substantive Due Process, Free Speech, Civil Rights/Liberties in Wartime, Political Dissent

Publication Citation

Gregory P. Magarian, Substantive Due Process as a Source of Constitutional Protection for Nonpolitical Speech, 90 Minn. L. Rev. 247 (2005)

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