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Subject Area: Political Theory

The First Amendment & The Court - Leonard P. Liggio, Literature of Liberty, Autumn 1981, vol. 4, No. 3 [1981]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The First Amendment & The Court

Thomas I. Emerson

  • Lines Professor of Law Emeritus, Yale University

“First Amendment Doctrine and the Burger Court.” California Law Review 68(May 1980):422–481.

In the period since the Burger Supreme Court has taken over from the Warren Court, there have been a few major changes in the position of free speech in the American constitutional system. Nevertheless, the Burger Court failure to adequately define a coherent position concerning the scope of freedom of expression has allowed the government to abridge individual liberty. Attempts by theorists such as Tribe and Baker to establish acceptable standards in this area are inadequate to the role of the system of freedom of expression in our national life. A more promising approach includes as a key constituent reliance on the expression—action dichotomy.

Freedom of speech is important because it is essential to several underlying values. These include (1) individual self-fulfillment; (2) the advance of knowledge and discovery; (3) participation in political decision making by all members of society; and (4) the proper balance between stability and change. While there is a broad consensus in society on the value of free speech in promoting these values, there are many disputes on how the doctrine of free speech should be implemented.

In particular, the Supreme Court must answer two questions: what conduct comes under the protection which the First Amendment accords to free speech; and how extensive is the protection which the Amendment provides for free speech? The Warren Court's answers to these questions can be criticized on some points. For example, the “clear and present danger” limit is unacceptably restrictive. Also, the Court's stress upon balancing free speech protection against other constitutional requirements fails to take adequate account of how essential freedom of speech is to our system of government. The Warren Court did, however, display sensitivity in some areas, e.g., the development of a “right to know,” to the problems posed by attempting to implement the system of freedom of expression.

The Burger Court is more open to criticism than the Warren Court. It has been intent even more than its predecessor in “balancing.” This has advanced to such an extent that the key doctrine of the “preferred position” of freedom of speech is in danger of being undermined. The rule in question provides that because of the fundamental importance of civil liberties, attempts by the government at restricting First Amendment freedoms must be judged with the strictest scrutiny. The Burger Court's ad hoc approach manifests in insensitivity to this doctrine.

Attempts by recent legal theorists to provide an acceptable rationale for a detailed policy on free speech have not been fully successful. Tribe's distinction between regulations aiming at curbing free speech and those (“track-two”) rules which aim to limit the non-speech effects of free speech allows for too much interference. Baker's stress upon the values free speech promotes is on the right path and his category of “coercive speech” is a valuable contribution. An even better analysis, however, would rest greater weight on the distinction between action and expression. Common objections to this approach (e.g. vagueness of the two terms definitions) can be overcome.