The First Amendment has a public relations problem. It has been used to defend Nazis and cross-burners, derail campaign finance reform, protect tobacco advertisers, and defeat health privacy. It is no big surprise that a number of scholars have called for rolling back the Supreme Court’s First Amendment absolutism. This Essay responds to Alexander Tsesis’s call for increased balancing of speech against other values in Free Speech Constitutionalism by asking whether an overarching theory of the First Amendment is in fact necessary. This Essay also provides context for why First Amendment doctrine currently eschews balancing tests. The Supreme Court's aversion to balancing in the First Amendment context stems from important historical examples, and First Amendment cases are often the vehicles for important and hard lessons about the rule of law.
Keywords: First Amendment, freedom of speech
JEL Classification: K00, K10, K30
Suggested Citation: Suggested Citation
Kaminski, Margot E., The First Amendment's Public Relations Problem: A Response to Alexander Tsesis's Free Speech Constitutionalism (October 5, 2015). Ohio State Public Law Working Paper No. 308, Available at SSRN: https://ssrn.com/abstract=2669523 or http://dx.doi.org/10.2139/ssrn.2669523
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