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Toward a General Theory of the First Amendment, 72 YALE L.J. 877 (1963)


No one concerned with freedom of expression in the United States today
can fail to be alarmed by the unsatisfactory state of first amendment doctrine.
Despite the mounting number of decisions and an even greater volume of comment,
no really adequate or comprehensive theory of the first amendment has
been enunciated, much less agreed upon. Proponents of the "absolute" or
"literal" interpretation of the first amendment have failed to define the bounds
of their position or to account for such apparent exceptions to the absolute
test as the law of libel, the application of child labor laws to tMe distribution of
literature, and the regulation of election campaigns. Their views have therefore
been dismissed as impractical or illogical, or both. At the other end of the
spectrum, the "balancing" test has tended to reduce the first amendment, especially
when a legislative judgment is weighed in the balance, to a limp and
lifeless formality. Among intermediate positions, the "clear and present danger"
test is the best known; yet not only has this formula often been ignored, but it
was discarded in Dennis and at any rate is hardly applicable to many of the
issues which now arise, such as the extent of the protection afforded by the first
amendment from the legislative investigating power. Other efforts to formulate
an overall theory have not met outstanding success. Nor has doctrine been
evolved to deal with some of the newer problems, where the issue is not pure
restraint on government interference but rather the use of governmental power
to encourage freedom of expression or the actual participation by government
itself in the realm of expression.'

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