Speech and Strife

Abstract

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, I argue that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, I distinguish between formal legal argumentation and informal deployment of images, metaphors, scripts and frames of understanding. Third, I examine the frame of institutional conflict, an especially powerful rhetorical strategy that appears not only in federalism cases, but also in speech cases. Finally, I examine the psychological dimension of this language device, the underlying script that is played out when the frame is invoked in our minds, and the relationship between the metaphor of conflict and enduring cognitive ideals.