This article proposes a way out of the vicious cycle of “First Amendment cynicism.” First Amendment cynicism is the disingenuous application or non-application of the First Amendment to further political ends unrelated to freedom of expression. The cycle is facilitated by either accurate or inaccurate perceptions of First Amendment cynicism by one’s political opponents.
As one example, the perception by those on the political left that the right is applying the First Amendment cynically—turning the First Amendment into the “New Lochner”—leads the left to lose faith in First Amendment principles. Some on the left then engage in First Amendment cynicism, not applying the First Amendment to those that harm their agenda. This approach is then observed by the right, and the cycle continues. Further, improper accusations of First Amendment cynicism, or what this article terms “second-order First Amendment cynicism” render this cycle ever more vicious.
To restore both the perception and the reality of a First Amendment that serves the entire political spectrum, this article first demonstrates why the increasing accusations of First Amendment cynicism are overstated and ahistorical. Later, this article argues that the First Amendment can be both nonpartisan—treating equally speech of all political stripes—and apolitical—leading to outcomes and social arrangements that favor no political ideology. The best way to ensure that free speech doctrine remains nonpartisan and apolitical is to favor a civil libertarian approach. However, courts should ensure that the First Amendment is egalitarian in cases where the government must intervene, such as cases involving speech on government land or cases involving the heckler’s veto. Finally, this article proposes ways for the Supreme Court to manage its docket and refine existing First Amendment doctrine so that the First Amendment serves those who most need its protections.
First Amendment Cynicism and Redemption,
88 U. Cin. L. Rev.
Available at: https://scholarship.law.uc.edu/uclr/vol88/iss4/1