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Reply to Bender, 29 Arizona State Law Journal 495 (1997)


Paul Bender has interesting and telling points to make, but a good

many of them do not concern the paper I have actually published in this

volume (or my work generally).

Bender cogently argues, for example, that because democratic selfgovernance

is not "the only reason for protecting speech in a democracy,"

"public discourse . . . is clearly not the entire realm of constitutionally

protected free expression, nor should it be." I quite agree with Bender on

this point, and I have never anywhere argued anything to the contrary.

Indeed, I explicitly observe in my contribution to this volume that the theory

of the "marketplace of ideas," which is limited to neither public discourse

nor democracy, "does constitute a significant presence in First Amendment

jurisprudence. "

The position that I actually defend is quite different from that

attributed to me by Bender. It is that the value of democratic self-goverance

is the most powerful explanation of the general pattern of First Amendment

decisions (and most particulary of its nationally idiosyncratic aspects), and

that democratic self-governance is the only value that can convincingly

account for the specific set of decisions protecting the abusive, outrageous

and indecent speech that are of most concern in this Symposium.

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