LEGAL PRECEDENT AND METAPHORIC CONCEPTION AS JUSTIFICATION FOR THE RIGHT TO RECEIVE IN KLEINDIENST V. MANDEL (MCCARRAN-WALTER; FIRST AMENDMENT).

摘要

In American society a constant tension exists between individual liberties and governmental power. In Kleindienst v. Mandel, 408 U.S. 753 (1971), the Supreme Court considered the constitutional protection afforded an individual's right to receive in the face of the Government's power to exclude foreign aliens. This case arose when then Attorney General John Mitchell refused to provide a waiver to Ernest Mandel, excludable under provisions of the McCarran-Walter Act for advocating the doctrine of world communism. While finding that the Government's exclusionary power was constitutionally acceptable, the full Court did explicitly recognize that the First Amendment provided constitutional protection for the right to receive.;In establishing protection for the right to receive in Kleindienst two forms of justification were employed: legal precedent and metaphoric conception. Analysis demonstrated that in employing legal precedent the majority, with the dissenters' approval, cited previous Court decisions demonstrating that the right to receive had been protected in other contexts: the mail, mass media, personal distribution of literature, and public speaking channels of communication.;Metaphoric conceptions of communication were also employed as justification for the extension of constitutional protection to the right to receive. Analysis of the majority and dissenting opinions revealed that the full Court rejected the conduit metaphor implicit in the conception of communication suggested by the Government. This analysis also revealed a partial acceptance of the coin metaphor explicit in the conception of comunication suggested by Justice Marshall's dissent. Essentially, the conduit metaphor presented a view of communication focused on sending, while the coin metaphor suggested communication to be a process.;Following analysis of the features and entailments of each metaphoric structure appearing in Kleindienst an argument was made linking the conception of communication subscribed to and the level of First Amendment protection provided the right to receive.;The right to receive involves the ability to have access to the views disseminated by a willing speaker. This right concerns a prohibition rather than a prescription. Thus the right to receive requires only that governmental agencies not interfere in the process of communication, not that they aide in that process.