Discussing the First Amendment
Since the First Amendment’s inception, Americans have agreed that free expression is foundational to our democratic way of life. Though we agree on this much, we have rarely agreed on much else regarding the appropriate parameters of free expression. Is the First Amendment absolute or does it allow some regulation of speech? Should the First Amendment protect offensive speech, pornography, flag-burning? Why do we protect speech – to promote the search for truth, to promote self-governance, or to protect individual autonomy?2 History is rife with disagreements regarding these issues to which there are no definitive answers. Certainly, the text of the First Amendment does not help; nor do the contemporaneous but conflicting historical documents. In light of the First Amendment’s textual generality, the Supreme Court has had to make up free speech doctrine as it goes along, using whatever tools it can find. The result is a complex set of legal rules regulating speech and expressive conduct that evolved over the last century, which has endured its fair share of criticism. Increasingly, scholars claim that the Court’s free speech decisions are theoretically incoherent4 or untrue to the First Amendment’s original roots.5 Criticism of the Court is also apparent at the public level, albeit in a more indirect manner. Recent polls show that the American public, although valuing free expression in the abstract, increasingly believes that the “First Amendment goes too far in the rights it guarantees,” a trend exacerbated by security concerns arising after the September 11th terrorist attacks.