Supreme Court jurisprudence often privileges certain constitutional provisions to the detriment of others. Following World War II, the Court’s elevation of the equal protection doctrine drove decisions that limited the rights of states and individuals. Over the last twenty years, however, the First Amendment—particularly the Free Speech Clause—has knocked equal protection from its perch.
This Article analyzes United States v. Alvarez and Knox v. Service Employees International Union by critiquing the Court’s opinions, comparing these opinions to other contemporaneously decided cases, and situating the cases within the larger doctrinal field of the First Amendment. In doing so, this Article illustrates the Court’s systematic advancement of the First Amendment’s Free Speech Clause. The Article highlights the occasionally inconsistent rationales behind the ascendance of the Free Speech Clause and emphasizes the cost of that ascendance to other societal and constitutional values, including labor rights, military interests, and even other clauses within the First Amendment. The Article concludes by underscoring the modern jurisprudential driving force of the First Amendment.
Vikram David Amar and Alan Brownstein,
The Voracious First Amendment: Alvarez and Knox in the context of 2012 and Beyond,
46 Loy. L.A. L. Rev. 491
Available at: http://digitalcommons.lmu.edu/llr/vol46/iss2/23