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Journal of Law and Policy

Article Title

Where's the Fire?

Authors

Burt Neuborne

Abstract

Freedom of speech is priceless, but distressingly fragile. Life, and law, would be much simpler if we could react to free speech's importance and fragility by granting it absolute legal protection. Since, however, absolute protection of speech is not—and should not be—a serious option, we face the legal realist challenge of erecting a First Amendment legal structure capable of providing real-world protection to highly controversial speech, often by weak speakers, without closing the door to government regulation. Given the uncertainty inherent in applying fact-dependent complex rules in protean factual settings, many potential speakers would avoid being drawn into unpredictable and expensive legal waters. Thus, I believe that any system of speech regulation must provide breathing space between the rule itself and the rule's application. That is why the emergencce of modern First Amendment "strict scrutiny" was such a welcome development. However, the Supreme Court has receded from substantive strict scrutiny doctrine by developing procedural doctrines such as overbroadth, vagueness, and equality, that it uses to resolve free speech debates that would be better off resolved by applying strict scrutiny. In the absence of a showing that vulnerable out of court speakers or hearers exist who would be unlikely to be able to assert their own free speech rights effectively, I believe that it is both unnecessary and unwise to resort to facial procedural review at the cost of impeding case-by-case development of the strict scrutiny doctrine and providing potentially unprotected speakers with an unjust windfall.