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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.”

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