The Disappearing First Amendment

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