Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, and media law, and seminars in appellate advocacy and law & theology. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Monday, March 14, 2011

On First Amendment Standards

Garrett Epps, a former Washington Post reporter who teaches constitutional law at the University of Baltimore, has written an interesting comment that is published in today's Atlantic on the persistence of First Amendment principles through the Warren, Rehnquist, and now Roberts courts. You can read the article here.

I agree with much of what Epps has to say, although I puzzle over his observation that this pattern can be explained (at least in part) by the fact that the Court's major free speech decisions are, at their base, "well-crafted and easy to apply."

Enthusiasts of the Court's First Amendment jurisprudence often cite New York Times v. Sullivan or Hustler v. Falwell as models (Epps cites both). While I agree with the results in those cases, I am not alone in believing that the majority opinions are not as coherent and "well-crafted" as we might hope. Nor are these precedents so easily applied. For example, my own view is that in Snyder the Fourth Circuit opinion reflects a misunderstanding and misapplication of some of the First Amendment precedents on which it relied. Indeed, this may explain why the Supreme Court took the case and affirmed the result but adopted precious little of the lower court's reasoning.

I agree with Epps that there is much to admire in the Court's First Amendment jurisprudence. But I would not count among its primary virtues those of craftsmanship and ease of application.

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