Abstract
In the last few years, a body of legal scholarship has developed which argues that content-specific regulation of speech "markets" is permissible in the same way that regulation of economic markets is permissible. The best known advocates of this view are Professors Cass Sunstein and Owen Fiss. The implicit corollary to their argument is that the principle of governmental noninterference with speech rights, which governs most current First Amendment cases, is little more worthy of adherence than Lochner was at the beginning of the New Deal. This paper is an effort to explore and rebut that argument. It asserts that the "market" metaphor is nothing more than that, and does not justify regulation to "improve" the content of speech in society. It further asserts that the noninterference principle is as vital in the media environments of the present and future as it was when the First Amendment was drafted, and details the basis for that assertion. In the course of doing so, it addresses the consequences of deviation from that principle in the past.
How to Cite
Adelman, R. W., (1996) “The First Amendment and the Metaphor of Free Trade”, Arizona Law Review 38(4), 1125–1174.
2
Views
0
Downloads