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Hastings Constitutional Law Quarterly

Abstract

Few works on the First Amendment have explored the relation between free speech and certainty. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. This Essay teases outphilosophically, textually, and operationally-the significance of that relationship and what it means for our First Amendment jurisprudence. This Essay examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish to cabin free speech rights. This Essay argues that many free speech theories (from Milton to Meiklejohn and beyond) have the net effect of constricting our First Amendment freedoms based on uncertain claims to normative benefits and equally uncertain claims of societal harm. At the philosophical level, a risk-free First Amendment is a contradiction while at the operational level it is a formula for suppression. The author invites the kind of First Amendment risk-taking once roundly championed by Justice Louis Brandeis-a brand of freedom though uncertain of its success is nevertheless hopeful of its attainment.

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