Berkeley Law

The twentieth century has seen the birth and the development of the doctrine of the First Amendment's free speech clause. In its current state, free speech jurisprudence is hampered by coexisting but conflicting First Amendment theories and doctrines. In this Essay, Professor Post examines these conflicts. He traces the development of two primary First Amendment theories: the theory of the marketplace of ideas, exemplified by Justices Holmes' dissenting opinion in Abrams v. United States; and the theory of democratic speech, articulated most notably by Alexander Meiklejohn. After discussing the doctrinal implications of these theories and noting that courts have not followed either theory consistently, Professor Post suggests that First amendment jurisprudence could be rendered more coherent if First Amendment theories were to be ordered according to a "lexical priority" that will illuminate what is at stake in the conflict between theories and how such conflicts may be settled.