Community and the First Amendment, 29 ARIZONA STATE LAW JOURNAL 473 (1997).
In this brief discussion, I attempt to clarify the relationship between two ideas that are fundamental to this conference: the concept of community and the concept of the First Amendment. Unfortunately each of these concepts is infamously murky and confused.
The notion of "community," as one sociologist has noted, is notoriously "difficult to define." Community can mean anything from a small and defmed geographic area to a group of persons who interact in a face-to-face manner. Generally, however, community evokes sensations of mutuality, respect, and support. The concept is unusual because, as Raymond Williams has noted, "[U]nlike all other terms of social organization . . . it seems never to be used unfavourably, and never to be given any positive opposing or distinguishing term." This is fundamentally because the concept is filled with nostalgia. We always seem to be losing community; it is constantly slipping through our fingers. We experience ourselves as continuously declining from a childhood state of grace into a more impersonal, uncaring, standardless world. It. is hard to know what sense to make of such an emotionally charged and slippery term.
Certainly, the First Amendment is no clearer as a concept. Of course, there is such a thing as the First Amendment, to whose simple text we can point. The Constitution states, in its relevant part: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." But since Congress (and every other branch of government) make laws abridging communication all the time, the meaning of these words is anything but lucid. Indeed, as I have elsewhere observed, "First Amendment doctrine is neither clear nor logical. It is a vast Sargasso Sea of drifting and entangled values, theories, rules, exceptions, predilections." The absence of a coherent structure, however, has not prevented the First Amendment from becoming the object of veneration. Who can possibly be opposed to it? Like community, therefore, the First Amendment carries a high and positive emotional valence.
The difficulty is how to relate one vague and ambiguous· concept to another. Considerations of time and of capacity preclude me from offering systematic and comprehensive accounts of either concept. What I can proffer, however, is a way of understanding community and First Amendment that may prove useful in illuminating the relationship between them. I will thus propose certain defmitions that are justified primarily because they can actually assist in sorting out some of the dilemmas that we will face in this Symposium.
Date of Authorship for this Version
Post, Robert C., "Community and the First Amendment" (1997). Faculty Scholarship Series. Paper 196.