The dynamic free speech clause: Free speech and its relation to other constitutional rights

Q2 Social Sciences
Omar Swartz
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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:
动态言论自由条款:言论自由及其与其他宪法权利的关系
正如本书所言,第一修正案一直是其自身成功的“受害者”。本书由一位著名的《第一修正案》学者撰写,为理解这种情绪提供了分析工具,并有助于理解,为什么在过去15年里,随着言论自由权利的扩大,这个国家的整体自由领域一直在缩小。例如,布朗诉娱乐商人协会案(2011年)、伯韦尔诉Hobby Lobby Stores案(2014年)、公民联合诉FEC案(2010年)、Janus诉AFSCME案(2018年)和里德诉吉尔伯特镇案(2015年)都是第一修正案的重大“胜利”,这些胜利在自由主义者长期拥护的传统第一修正案的基本原理下是违反直觉的。未来可能会出现更多这样的“胜利”,预示着妇女权利、同性恋权利和环境正义的挫折——正如那些长期拥护《第一修正案》以实现社会正义目标的进步法学家所担心的那样。作为一个国家,我们把第一修正案浪漫化了,却对它一无所知。正如齐克所指出的那样,第一修正案具有一种岩浆作用或引力,它以自己的形象重新定义了其他法律和文化利益。因此,新闻界、诉讼当事人、法院、媒体和学者倾向于将宪法权利视为基于英雄人物的孤立概念,第一修正案的英雄是最杰出的。这使得人们难以认识到,权利不是孤立存在的,也不是静态的或分层的(即,没有任何宪法权利优先于其他权利;法院的作用是找到平衡特定案件中涉及的不同利益的方法。齐克认为,问题在于对《第一修正案》的解读将其五个部分分解为一个笼统的“言论自由”情感,从而失去了权利的“关系维度”,而这些权利通常是为了利用它们之间的协同作用。对“言论自由”的狂热保护削弱了其他条款和修正案对其他同等重要的非言论利益的影响。为了解决这个问题,齐克倡导一种基于“权利动力”的“权利多元主义”,强调构建其意义的相互作用,为左派和右派创造法理和修辞上的机会,以促进他们的利益:
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来源期刊
First Amendment Studies
First Amendment Studies Social Sciences-Law
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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).
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