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It is the peculiar province of the First Amendment to belong to everyone, to be a part of every cause, to be cited on both sides of every legal issue and not a few political ones. Back in 1977, in the spring of my first year of law school, I had my initial encounter with what one of my professors called "the Yale theory of the First Amendment." Because I was a student at Yale, this encounter with a First Amendment theory naturally took place not in the introductory constitutional law course, which I had taken in the fall, or even in the course on freedom of expression, in which I was then enrolled, but in Property.
We were discussing a case that involved, as I recall, someone who had hung some washing to dry on an outdoor clothesline—a violation, it seemed, of some zoning regulation. The professor led us through the mysterious twists and turns of zoning law, and our every effort to find a defense for the unfortunate zoning violator ended in good-natured disaster. When we had exhausted our meager supply of ideas gleaned from the previous night's reading, the professor looked out over the room and said, "But nobody is making the obvious argument." We looked to one another in confusion and not a little terror, fearing that one of us would be called upon to supply the obvious argument and found wanting.
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