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Towards An Explicit Balancing Inquiry: R.A.V. And Black Through The Lens Of Foreign Freedom Of Expression Jurisprudence , Matthew S. Melamed

Matthew S Melamed

The article concerns the balancing inquiry that currently provides implicit structure to recent United States Supreme Court decisions concerning the constitutionality of laws banning cross burning, as exemplified in R.A.V. v. City of St. Paul and Virginia v. Black. Part I identifies the historical antipathy towards balancing inspired by the First Amendment, simultaneously considering the jurisprudential failure of First Amendment fundamentalism and the powerful ideological hold that it nevertheless still exerts. Part II briefly introduces the motivation and means by which the European Court of Human Rights and the Canadian Constitutional Court utilize explicit balancing tests in freedom of expression …