An Account of the First Amendment in Retreat

Never let it be said that we at the Forum do not post about work that runs seemingly somewhat contrary to our own views. Here’s a new book arguing that, contrary to appearances, the Supreme Court has shrunk the scope of the rights of speech and association in the 20th century: The Disappearing First Amendment (Cambridge University Press), by Ronald J. Krotoszynski. (For a different view, see this paper).

“The standard account of the First Amendment presupposes that the Supreme Court consistently has 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.”