Understanding the First Amendment, 87 Washington Law Review 549 (2012)
nsightful commentators as the Washington Law Review has assembled.
It is exhilarating to participate in a conversation of this range and
intensity. I am very grateful to the Washington Law Review, Ronald K.L.
Collins and David Skover, and the University of Washington School of
Law, for making this symposium possible.
As I read the contributions to this symposium, I am put in mind of
Oliver Wendell Holmes’ famous injunction that “[w]e must think things
not words, or at least we must constantly translate our words into the
facts for which they stand, if we are to keep to the real and the true.”1
Although lawyers love words and language, “the real justification of a
rule of law,” Holmes argued, “is that it helps to bring about a social end
which we desire.”2 Holmes’ advice was to pay close attention to whether
our legal words in fact function to serve our social ends.
Nowhere is the disjunction between words and ends more apparent
than in First Amendment jurisprudence. We suffer from First
Amendment hypertrophy. Doctrine proliferates endlessly and
meaninglessly. Around every corner is yet another confusing First
Amendment “test.” We barely ever stop to ask what social ends are
actually served by this barrage of inconsistent and abstract doctrine. We
rarely take time to “translate our [First Amendment] words into the facts
for which they stand.”
Date of Authorship for this Version
Post, Robert C., "Understanding the First Amendment" (2012). Faculty Scholarship Series. 4836.