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8 - The First Amendment from 1964 to the Present

Hard Cases

from Part II - History

Published online by Cambridge University Press:  30 April 2022

Len Niehoff
Affiliation:
University of Michigan Law School
E. Thomas Sullivan
Affiliation:
University of Vermont
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Summary

The Court’s increasingly categorical approach to First Amendment doctrine created a conceptual tool box: use this analysis for defamation, that one for obscenity; use this analysis for a content-based regulation, that one for a content-neutral time, place, and manner restriction; use this analysis for a traditional public forum, that one for a nonpublic forum; use this analysis for a prior restraint, that one for a subsequent punishment; and so on. In general, this approach yielded fairly clear guidance, although reasonable people can disagree about the merits of the results. Along the way, however, the Court encountered some hard cases that called for their own distinctive approaches.

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Chapter
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Free Speech
From Core Values to Current Debates
, pp. 86 - 102
Publisher: Cambridge University Press
Print publication year: 2022

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