MODERN POWER AND THE FIRST AMENDMENT: REASSESSING HATE SPEECH

摘要

By protecting dissident speech, the First Amendment purports to offer a way for subordinate social groups to participate in political discourse, to hold and exercise power through communication. However, in recent years, legal scholars have begun to question the traditional principles inherent in First Amendment doctrine and the reliance by the Supreme Court of the United States on what could be considered an outdated idea of liberty. This article argues that individuals and groups are socially constructed and, as a result, current traditional liberal theory and its reliance on the autonomous individual fail to address societal power and speech's role in that power dynamic. Specifically, the article offers a new framework for free speech cases that would consider context―both historical and individual―in addition to in-place doctrinal tests.