As noted earlier, and given the underlying premises of many so-called theories of free speech, their practical effect is to diminish the realm of First Amendment freedom. This is true either to how free speech is defined or how it is balanced against normative considerations. Consequently, such theories are more appropriately viewed as anti-free speech theories. Why? Because if speech does not comport with the normative criteria proffered, then the expression in question loses any claim to constitutional protection. Put another way, many speech theorists demand that speech prove its normative worth before it is protected. Here is how it works: They construct some utopian republic (utopian to them, though perhaps dystopian to us) that is intended …show more content…
In these times when the liberal academy and the ill-liberal think tank carry much influence, what the First Amendment may need most is less theory and more liberty. While I do not argue for that categorically, I am nonetheless willing to defend that idea as long as reasonably possible, taking due account for a generous ration of risk. Before leaving this subject, let me add a few more words, beginning with these: Why theory? What purpose, if any, does it serve? Might we have a First Amendment sans theory? In a rudimentary sense, First Amendment theory might be said to serve two purposes: First, to help rein in, “explain,” or criticize the in-and-outs of decisional law. And second, theory shades the law in a blanket of norms, sometimes labeled “universal” or “inalienable” or “fundamental” or “long-standing.” As to the first purpose, part and parcel of legal analysis is the ability to understand how the law is conceptualized and reconceptualized by those who direct or interpret its course. Each generation of scholars has its builders and levelers, its conceptualists and contextualists, its formalists and anti-formalists, its Langdells and Llewellyns, and so