Publication
Minnesota Law Review
Volume
89
Page
1407
Year
2005
Abstract
Should the First Amendment pay attention to the setting in which speech occurs, giving more protection to some institutions than to others? The very suggestion is a heresy. The First Amendment, to a degree unknown elsewhere in American law, has been characterized by a certain kind of blindness. It has largely been blind to the popularity of the speech involved, blind to whether the speech is favored or disfavored by the government, and blind to the identity of the speaker. On the other hand, some institutions - the professional media, libraries, and universities, for example - are especially good at serving as a check against government abuse, informing us about important public issues and helping us acquire knowledge. Some institutions are better First Amendment citizens than others. If we want a robust First Amendment, why should we be blind to that? Should the First Amendment pay attention to the setting in which speech occurs, giving more protection to some institutions than to others? The very suggestion is a heresy. The First Amendment, to a degree unknown elsewhere in American law, has been characterized by a certain kind of blindness. It has largely been blind to the popularity of the speech involved, blind to whether the speech is favored or disfavored by the government, and blind to the identity of the speaker. On the other hand, some institutions - the professional media, libraries, and universities, for example - are especially good at serving as a check against government abuse, informing us about important public issues and helping us acquire knowledge. Some institutions are better First Amendment citizens than others. If we want a robust First Amendment, why should we be blind to that?
Recommended Citation
Dale Carpenter, The Value of Institutions and the Values of Free Speech, 89 Minn. L. Rev. 1407 (2005), available at https://scholarship.law.umn.edu/faculty_articles/141.
