Understanding the First Amendment

Abstract

It is a rare privilege to be read and engaged by such thoughtful and insightful commentators as the Washington Law Review has assembled. It is exhilarating to participate in a conversation of this range and intensity. I am very grateful to the Washington Law Review, Ronald K.L. Collins and David Skover, and the University of Washington School of Law, for making this symposium possible. As I read the contributions to this symposium, I am put in mind of Oliver Wendell Holmes’ famous injunction that “[w]e must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” Although lawyers love words and language, “the real justification of a rule of law,” Holmes argued, “is that it helps to bring about a social end which we desire.” Holmes’ advice was to pay close attention to whether our legal words in fact function to serve our social ends. Nowhere is the disjunction between words and ends more apparent than in First Amendment jurisprudence. We suffer from First Amendment hypertrophy. Doctrine proliferates endlessly and meaninglessly. Around every corner is yet another confusing First Amendment “test.” We barely ever stop to ask what social ends are actually served by this barrage of inconsistent and abstract doctrine. We rarely take time to “translate our [First Amendment] words into the facts for which they stand.”