Subject: message from Eugene Volokh
From: Rick Hasen
Date: 12/11/2003, 11:15 AM
To: "election-law@majordomo.lls.edu" <election-law@majordomo.lls.edu>
Reply-to:
rick.hasen@mail.lls.edu

Eugene writes:

f I might engage in a bit of shameless self-promotion, my Harvard JLPP
piece on Breyer's approach(http://www1.law.ucla.edu/~volokh/election.htm
<http://www1.law.ucla.edu/~volokh/election.htm> ) compares Breyer's Shrink
Missouri balancing-speech-and-democracy argument with Frankfurter's
balancing-speech-and-democracy argument in Dennis, the communist advocacy
case.  Both are, I think, forceful and eloquent, and the structural and
substantive similarities are quite striking.  (Breyer's approach to free
speech generally seems to me to be often quite Frankfurterian.)

But this should be a reminder, I think, that lots of free speech
controversies -- campaign-related speech, Communist advocacy, antiwar
speech, racist speech, antireligious speech, anti-private-property speech,
harsh criticism of judicial decisions, pro-abortion-rights speech in a world
where Roe and Casey are overturned, etc. -- involve the tension between free
speech rights and constitutionally grounded values (whether democracy,
equality, religious freedom, free speech itself, private property, due
process, life, and so on).  If free speech protections are relaxed when
there's a constitutional value on the other side, then they'll be relaxed
very often.

Eugene