My colleague Professor Zachary Price, an expert on the constitutional separation of powers, recently dove into the First Amendment debates in a symposium article published in the University of Pennsylvania’s Journal of Constitutional Law. The article, titled “Our Imperiled Absolutist First Amendment,” examines the First Amendment in light of three salient socio-political developments: fake news, the rise in hate speech, and terrorism. Professor Price asks a hard question of each: does the dangerous rise of the phenomenon merit limiting First Amendment protections?
If you have followed any of these developments and contemplated how the judiciary (or Congress) should respond to these matters as forms of speech, this article is clarifying. Professor Price’s answer to this hard question in each instance is a resounding “no,” and he roots his argument in a historical understanding of First Amendment doctrine. He reminds us that the framework for expansive free-speech freedoms we enjoy today emerged during the 1960s and 1970s—largely in response to civil-rights cases. From foundational decisions like New York Times v. Sullivan, Street v. New York, Wood v. Georgia, and NAACP v. Button, the Supreme Court has since built out even broader protections for speech.
Professor Price argues that retreating from this absolutist stance—which has, to date, largely protected counter-majoritarian sentiments—could carry significant costs. While hard cases on matters of speech—like fake news, words of hate, or ideologically motivated incitements to violence—may generate understandable pressure for incremental incursions on free-speech rights, such incursions risk reciprocal repression. The important take-home message of this must-read piece is that by weakening First Amendment protections to address bigoted speech, we may unwittingly invite undesirable forms of political and social domination.
As with his writings on the separation of powers, Professor Zachary Price’s piece on the “Imperiled Absolutist First Amendment” is an important and compelling addition to a body of legal scholarship that may very well shape constitutional speech rights in the coming years.