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Managed SpeechThe Roberts Court's First Amendment$
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Gregory P. Magarian

Print publication date: 2017

Print ISBN-13: 9780190466794

Published to Oxford Scholarship Online: March 2017

DOI: 10.1093/acprof:oso/9780190466794.001.0001

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The Marrow of Tradition

The Marrow of Tradition

Categorical Exclusions from First Amendment Protection

Chapter:
(p.3) Chapter 1 The Marrow of Tradition
Source:
Managed Speech
Author(s):

Gregory P. Magarian

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780190466794.003.0001

This chapter begins the first part of the book, which considers disputes about government regulations of private speech. This chapter explores the Roberts Court’s decisions about whether and why it should exclude whole categories of speech from First Amendment protection. It discusses two prominent decisions in which the Roberts Court has emphatically refused to expand categorical exclusions. Free speech advocates have hailed the results in those cases. A closer look at the decisions, however, reveals that they matter only marginally as precedent and, more importantly, that their analytic focus on tradition as the proper basis for categorical exclusions has given the Roberts Court a basis for denying First Amendment protection to categories of speech in several other cases.

Keywords:   U.S. Supreme Court, Roberts Court, First Amendment, free speech, private speech, speech categories, categorical exclusions, tradition

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