Journal Article

JUSTICE BREYER AND THE PARTIAL DE-DOCTRINALIZATION OF FREE SPEECH LAW

Tushnet, Mark

2014

Overview

In the 1960s and 1970s free speech law became doctrinalized. People came to understand that content-based regulations of persuasive speech could be justified only if courts could identify a relatively tight causal connection between the regulated speech and social harms, that speech that operated through noncognitive mechanisms could be regulated when the speech caused harm by its very utterance, and that speech falling within some specific categories such as obscenity and commercial speech could be regulated on a lesser showing of causation. They also came to understand that content-neutral regulations (formerly described as \"time, place, and manner\" regulations) could be justified by important governmental interests when the regulations had relatively small effects on the overall dissemination of speech. This is of course only a ketch of First Amendment doctrine as of the turn of the twenty-first century, but it gives a flavor of what the author means by \"doctrinalization.\"

• Publisher: The Harvard Law Review Association,Harvard Law Review Association
• Subject: 21st century / Amendments / Breyer, Stephen / Breyer, Stephen G / Causality / Courts / Dissemination / ESSAYS IN HONOR OF JUSTICE STEPHEN G. BREYER / First Amendment / First Amendment-US / Fraud / Freedom of speech / Government regulation / Information dissemination / Judges & magistrates / Law / Legal judgments / Legislators / Lying / Obscenity / Political doctrines / Political speeches / Regulation / Social control / Speech / Statutory law / U.S.A