In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course.
Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and unpopular political movements. Since Brandenburg, the Court’s jurisprudence has turned towards free-speech absolutism. Today, free-speech discourse focuses on the right of what is said without discussing what the effect of that discourse is. Rather than allowing the “market” to decide what is and is not acceptable within public discourse, the Supreme Court has made the First Amendment a truism. The result is a fetishization of free speech without understanding its broader implications.
This Comment argues that the Court’s jurisprudence consistently reflects sociopolitical values of the dominant political ideology. This Comment begins by examining the history of the First Amendment in the context of World War I and the development of the “clear and present danger” doctrine, which was used to suppress anti-war dissidents. This doctrine evolved into the Brandenburg incitement test, which embodied free-speech absolutism. Following this legal analysis, this Comment credits the philosophy of John Stuart Mill with laying the philosophical justification for the Court’s jurisprudence. This Comment critiques free-speech absolutism and its values, specifically tolerance and the “marketplace of ideas,” by considering the power dynamics at play during speech acts, specifically hate speech. This critique concludes by offering several possible solutions, including tort remedies, to solve the power imbalance created by the Court’s jurisprudence.
Whose Market Is It Anyway? A Philosophy and Law Critique of the Supreme Court’s Free-Speech Absolutism,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlr/vol123/iss2/6
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