Document Type
Article
Publication Date
Spring 2022
Abstract
The Supreme Court has dedicated itself to the proposition that political speech, more than any other category of speech, is deserving of the highest protection. A succession of cases amply supports this proposition. In Virginia v. Black, the Court announced that "lawful political speech [is] at the core of what the First Amendment is designed to protect." The Court similarly declared in Monitor Patriot Co. v. Roy that the First Amendment "has its fullest and most urgent application" to political speech. In McIntyre v. Ohio Elections Commission, the Court held that "handing out leaflets in the advocacy of a politically controversial viewpoint-is the essence of First Amendment expression" and that "[n]o form of speech is entitled to greater constitutional protection." So too the Court stressed in Buckley v. Valeo that "[t]he First Amendment affords the broadest protection to . .. political expression." The Court in Texas v. Johnson emphasized that the speaker who had burned the American flag as a form of expressive protest "was not . .. prosecuted for the expression of just any idea." Rather, Johnson was, in the Court's words, "prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values." In Landmark Communications, Inc. v. Virginia, the Court stated that political speech "lies near the core of the First Amendment." These affirming words in Landmark Communications were recited by the Supreme Court in other cases, a testament to the Court's steadfast protection of political speech as a uniquely deserving category. As such examples illustrate, political speech enjoys a coveted place in the Supreme Court's jurisprudence. What is less clear is whether political speech deserves its privileged status. Undeniably, political speech has helped to advance civil rights and civic enlightenment, but political speech has also been used to justify, among other evils, the enslavement of blacks and the perpetuation of racial segregation. That these abhorrent practices have been formally eradicated is only a partial victory for political speech given how long they had persisted. This Article will argue that the Supreme Court's heightened protection for political speech is unjustified.
Publication Title
Nevada Law Journal
Volume
22
First Page
803
Last Page
865
Keywords
Political Speech, First Amendment
Recommended Citation
John M. Kang,
Against Political Speech,
22
Nevada Law Journal
803
(2022).
Available at:
https://digitalrepository.unm.edu/law_facultyscholarship/929
