Toward a General Theory of the First Amendment

No one concerned with freedom of expression in the United States today can fail to be alarmed by the unsatisfactory state of first amendment doctrine.Despite the mounting number of decisions and an even greater volume of comment, no really adequate or comprehensive theory of the first amendment has been enunciated, much less agreed upon.Proponents of the "absolute" or "literal" interpretation of the first amendment have failed to define the bounds of their position or to account for such apparent exceptions to the absolute test as the law of libel, the application of child labor laws to tMe distribution of literature, and the regulation of election campaigns.Their views have therefore been dismissed as impractical or illogical, or both.At the other end of the spectrum, the "balancing" test has tended to reduce the first amendment, especially when a legislative judgment is weighed in the balance, to a limp and lifeless formality.Among intermediate positions, the "clear and present danger" test is the best known; yet not only has this formula often been ignored, but it was discarded in Dennis and at any rate is hardly applicable to many of the issues which now arise, such as the extent of the protection afforded by the first amendment from the legislative investigating power.Other efforts to formulate an overall theory have not met outstanding success.Nor has doctrine been evolved to deal with some of the newer problems, where the issue is not pure restraint on government interference but rather the use of governmental power to encourage freedom of expression or the actual participation by government itself in the realm of expression.'This failure to develop a satisfactory theory of the first anendment is hardly surprising.The issues are controversial and the problems complex.The Supreme Court did not seriously commence the task of interpretation until a few decades ago, beginning with the Schenck case in 1919.And rapidly changing conditions in the country have presented the issues in new and more difficult forms.Irrespective of the causes, however, there is grave danger in the present situation.Not only are courts and the legal profession in sharp conflict but the public is seriously confused and the first anendment is threatened with disintegration.Under the circumstances, one further attempt to state all acceptable theory may perhaps be pardoned.*This article is based upon materials from a book now in preparation dealing in more elaborate fashion with freedom of expression in the United States.No attempt is made here to treat the provisions of the first amendment which relate to freedom of religion.tLines Professor of Law, Yale Law School.1.The various current legal doctrines are discussed in more detail later in this article, at which point some of the major literature in. the field is cited.