{"title":"The dynamic free speech clause: Free speech and its relation to other constitutional rights","authors":"Omar Swartz","doi":"10.1080/21689725.2019.1621446","DOIUrl":null,"url":null,"abstract":"As suggested by this book, the First Amendment has been a “victim” of its own success. Written by a leading First Amendment scholar, it provides the analytical tools for making sense of this sentiment and for understanding, why, as free speech rights expanded in the last 15 years, the total realm of liberty has been contracting in this country. For instance, Brown v. Entertainment Merchants Association (2011), Burwell v. Hobby Lobby Stores (2014), Citizens United v. FEC (2010), Janus v. AFSCME (2018), and Reed v. Town of Gilbert (2015) were all major First Amendment “victories” that were counter-intuitive under traditional First Amendment rationales that liberals have long championed. More such “victories” are likely to occur in the future, portending setbacks for women’s rights, gay rights, and environmental justice – as feared by progressive jurists, people who long championed the First Amendment to achieve the aims of social justice. As a nation, we romanticize the First Amendment while being ignorant of it. As Zick points out, the First Amendment has a magmatism or gravity that redefines other legal and cultural interests in its image. Hence, the press, litigants, courts, the media, and scholars tend to approach constitutional rights as isolated concepts grounded in heroic figures, with First Amendment heroes being the most towering. This makes it difficult to appreciate that rights do not exist in isolation, nor are they static or hierarchical (i.e., no constitutional right has preference over another; the role of courts is to find ways to balance the different interests involved in a specific case). The problem, according to Zick, is a reading of the First Amendment that collapses its five parts into one generic “freedom of speech” sentiment, which loses the “relational dimensions” of rights generally to capitalize upon their synergies with each other. Other clauses and amendments are weakened by zealous protection of “free speech” against other equally important non-speech interests. To remedy this, Zick champions a “Rights Pluralism” grounded in a “Rights Dynamism,” which emphasizes interactions that construct their meanings, creating jurisprudential and rhetorical opportunity on both the left and the right to promote their interests:","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"53 1","pages":"128 - 130"},"PeriodicalIF":0.0000,"publicationDate":"2019-06-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2019.1621446","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"First Amendment Studies","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1080/21689725.2019.1621446","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q2","JCRName":"Social Sciences","Score":null,"Total":0}
引用次数: 0
Abstract
As suggested by this book, the First Amendment has been a “victim” of its own success. Written by a leading First Amendment scholar, it provides the analytical tools for making sense of this sentiment and for understanding, why, as free speech rights expanded in the last 15 years, the total realm of liberty has been contracting in this country. For instance, Brown v. Entertainment Merchants Association (2011), Burwell v. Hobby Lobby Stores (2014), Citizens United v. FEC (2010), Janus v. AFSCME (2018), and Reed v. Town of Gilbert (2015) were all major First Amendment “victories” that were counter-intuitive under traditional First Amendment rationales that liberals have long championed. More such “victories” are likely to occur in the future, portending setbacks for women’s rights, gay rights, and environmental justice – as feared by progressive jurists, people who long championed the First Amendment to achieve the aims of social justice. As a nation, we romanticize the First Amendment while being ignorant of it. As Zick points out, the First Amendment has a magmatism or gravity that redefines other legal and cultural interests in its image. Hence, the press, litigants, courts, the media, and scholars tend to approach constitutional rights as isolated concepts grounded in heroic figures, with First Amendment heroes being the most towering. This makes it difficult to appreciate that rights do not exist in isolation, nor are they static or hierarchical (i.e., no constitutional right has preference over another; the role of courts is to find ways to balance the different interests involved in a specific case). The problem, according to Zick, is a reading of the First Amendment that collapses its five parts into one generic “freedom of speech” sentiment, which loses the “relational dimensions” of rights generally to capitalize upon their synergies with each other. Other clauses and amendments are weakened by zealous protection of “free speech” against other equally important non-speech interests. To remedy this, Zick champions a “Rights Pluralism” grounded in a “Rights Dynamism,” which emphasizes interactions that construct their meanings, creating jurisprudential and rhetorical opportunity on both the left and the right to promote their interests:
期刊介绍:
First Amendment Studies publishes original scholarship on all aspects of free speech and embraces the full range of critical, historical, empirical, and descriptive methodologies. First Amendment Studies welcomes scholarship addressing areas including but not limited to: • doctrinal analysis of international and national free speech law and legislation • rhetorical analysis of cases and judicial rhetoric • theoretical and cultural issues related to free speech • the role of free speech in a wide variety of contexts (e.g., organizations, popular culture, traditional and new media).