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Distrust, Negative First Amendment Theory, And The Regulation Of Lies, Helen Norton
Distrust, Negative First Amendment Theory, And The Regulation Of Lies, Helen Norton
Publications
This symposium essay explores the relationship between “negative” First Amendment theory—rooted in distrust of the government’s potential for regulatory abuse—and the government’s regulation of lies. Negative First Amendment theory explains why many lies are protected from governmental regulation—even when the regulation neither punishes nor chills valuable speech (as was the case, for example, of the statute at issue in United States v. Alvarez). But negative theory, like any theory, also needs limiting principles that explain when the government’s regulation is constitutionally justifiable.
In my view, we engage in the principled application of negative theory when we invoke it in (the …
A Framework For Thinking About The Government’S Speech And The Constitution, Helen Norton
A Framework For Thinking About The Government’S Speech And The Constitution, Helen Norton
Publications
This Essay sketches a framework for mapping and navigating the constitutional implications of the government’s speech—and then illustrates this framework’s application to some contemporary constitutional disputes. My hope is that this framework will help us sort through the constitutional puzzles triggered by the government’s expressive choices—puzzles that confront courts and policymakers with increasing frequency. What I call “first-stage government speech questions” require us to determine when the government is speaking itself and when it is instead (or also) regulating others’ speech. This determination matters because the rules that apply to the government as speaker are very different from those that …
Manipulation And The First Amendment, Helen Norton