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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.

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