Recuperating First Amendment Doctrine

Abstract

Contemporary First Amendment jurisprudence seeks to protect the abstract fact of communication. In this essay, Professor Post argues that this ambition has led to deep doctrinal incoherence. He illustrates this incoherence by examining two specific areas of First Amendment law-the question of what triggers First Amendment scrutiny, and the issue of time, place, and manner regulations. The essay asserts that the doctrinal disarray in these two areas of First Amendment law stems from the fact that the Court has attempted to locate constitutional value in speech itself. But, Professor Post contends, the constitutional values actually recognized by First Amendment jurisprudence inhere instead in discrete social practices. Professor Post argues that First Amendment doctrine will continue to flounder until the Court establishes a new framework for First Amendment jurisprudence, one in which particular forms of social structure form the basic units of analysis rather than speech as such.