The First Amendment and Political Risk

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The First Amendment and Political Risk

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Title: The First Amendment and Political Risk
Author: Tushnet, Mark V.
Citation: Mark Tushnet, The First Amendment and Political Risk, 4 J. Legal Analysis 103 (2012).
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Abstract: First Amendment doctrine is at its core about the correct response to the fact that speech can increase the risk of social harm. First Amendment risk varies along several dimensions, including distribution of risk, its magnitude, and the magnitude of social benefit. After describing several cases in which the Supreme Court’s assessment risk or harm seems mistaken, I describe the tendency over time for courts to replace doctrine articulated as standards with doctrine articulated as rules with exceptions. I explain why that tendency occurs and can be normatively justified, but that it can produce pathologies when the courts resist, for a variety of reasons, the proliferation of exceptions to the rules.
Published Version: http://jla.oxfordjournals.org/content/4/1/103.abstract
Other Sources: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2031258
Terms of Use: This article is made available under the terms and conditions applicable to Open Access Policy Articles, as set forth at http://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#OAP
Citable link to this page: http://nrs.harvard.edu/urn-3:HUL.InstRepos:9667254

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