The Disappearing First Amendment

Shows that while the Supreme Court enforces some First Amendment rights vigorously, it often fails to protect ordinary citizens' expressive freedoms.

Ronald J. Krotoszynski, Jr. (Author)

9781108481540, Cambridge University Press

Hardback, published 3 October 2019

384 pages
23.5 x 15.5 x 2.5 cm, 0.7 kg

'Constitutional scholars will find this text valuable in highlighting important, often ignored Supreme Court cases and in drawing connections between the court's subtle jurisprudential shifts and the democratic institutions the doctrine is intended to serve.' D. E. Smith, Choice

The standard account of the First Amendment presupposes that the Supreme Court has consistently expanded the scope of free speech rights over time. This account holds true in some areas, but not in others. In this illuminating work, Ronald J. Krotoszynski, Jr acknowledges that the contemporary Supreme Court rigorously enforces the rules against content and viewpoint discrimination for those who possess the wherewithal to speak but when citizens need the government's assistance to speak - for example, access to public property for protest - free speech rights have declined. Instead of using open-ended balancing tests, the Roberts and Rehnquist Courts have opted for bright line, categorical rules that minimize judicial discretion. Opportunities for democratic engagement could be enhanced, however, if the federal courts returned to the Warren Court's balancing approach and vested federal judges with discretionary authority to require government to assist would-be speakers. This book should be read by anyone concerned with free speech and its place in democratic self-government.

1. Two steps forward, one step back: on the decline of expressive freedoms under the Roberts and Rehnquist Courts
2. The public forum doctrine and reduced access to government property for speech activity
3. The First Amendment as a source of positive rights: the Warren Court and First Amendment easements to private property
4. Whistleblowing speech and democratic accountability: the growing problem of reduced First Amendment protection for government employee speech
5. Shedding their constitutional rights at the schoolhouse gate: the decline of freedom of speech for students and teachers in the nation's public schools, colleges, and universities
6. Transborder speech: using the accident of geography as a makeweight justification for suppressing expressive freedoms
7. Systemic failures to protect newsgathering activities by professional journalists and amateur citizen-journalists alike
8. The citizen as government sock-puppet and the state masquerading as a citizen: the problem of coerced and mis-attributed speech
9. Using constitutionally permissible statutes to impede first amendment activity: the Supreme Court's failure to address the abuse of discretionary authority by police, prosecutors, and other non-judicial actors
10. Conclusion enhancing speech and promoting democracy: the necessary role of the state in promoting democratic deliberation among citizen-speakers
Index.

Subject Areas: Constitutional & administrative law [LND], Public international law [LBB], Politics & government [JP]