Toward a Legal Realist View of the First Amendment
21 Pages Posted: 9 Jul 2012
There are 2 versions of this paper
Toward a Legal Realist View of the First Amendment
Date Written: January 2000
Abstract
Posits that First Amendment law has circumvented the reforms of legal realism by persisting in a mechanical jurisprudence that values formalistic rules at the expense of policy and context. Analyzes a recent text that recommends higher levels of First Amendment protection when speech takes the form of dissernt. Discusses how this dissent-based approach to the First Amendment has merit, particularly in connection with hate speech. Urges a number of practical solutions to the problems inherent in regulating this form of low-value speech.
Keywords: legal realism, freedom of speech, hate speech, First Amendment, critical race theory
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