Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 California Law Review 2353 (2000)
The twentieth century has seen the birth and development of the doctrine
of the First Amendment's free speech clause. In its current state, freespeech
jurisprudence is hampered by coexisting but conflicting First
Amendment theories and doctrines. In this Essay, Professor Post examines
these conflicts. He traces the development of two primary First Amendment
theories: the theory of the marketplace of ideas, exemplified by Justice
Holmes' dissenting opinion in Abrams v. United States; and the theory of
democratic speech, articulated most notably by Alexander Meiklejohn.
After discussing the doctrinal implications of these theories and noting that
courts have not followed either theory consistently, Professor Post suggests
that First Amendment jurisprudence could be rendered more coherent
if First Amendment theories were to be ordered according to a "lexical
priority" that will illuminate what is at stake in the conflict between theories
and how such conflicts may be settled.
Date of Authorship for this Version
Post, Robert, "Reconciling Theory and Doctrine in First Amendment Jurisprudence" (2000). Faculty Scholarship Series. 4638.