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The Disappearing First Amendment

The Disappearing First Amendment

Author: Ronald J. Krotoszynski Jr.
Publisher: Cambridge University Press
ISBN: 9781108722919
Published In: October 2019
Format: Paperback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Description
Contents

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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.

Provides an overarching theory of modern First Amendment theory, law, and practice to help organize and explain an otherwise odd distribution of wins and losses for litigants seeking to vindicate First Amendment claims
Challenges the current prevailing view that First Amendment rights consistently have expanded over time since the Warren Court
Argues in favor of balancing tests in First Amendment jurisprudence rather than bright line, categorical rules

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