Article by William E. Lee
The United States Supreme Court's freedom of expression cases reveal widely inconsistent evaluations of legislative facts. In some cases, such as those involving unprotected categories of speech, the Court allows legislatures to operate on the basis of unproven assumptions. In cases involving highly protected expression, such as political speech, the Court generally applies a presumption of invalidity that marginilizes the legislature's factual conclusions. Within the contours of intermediate scrutiny, a host of highly contextual factors, such as the perceived importance of the speech at issue, the burden on communicative opportunities, and the medium of communication, determine whether or not the Court defers to the legislature's judgment. In this Article, Professor William E. Lee seeks to untangle the Court's treatment of legislative facts by analyzing recent First Amendment cases such as Turner Broadcasting System, 44 Liquormart, and Denver Area Educational Telecommunications. Professor Lee concludes that the Court's treatment of legislative facts lacks a principled commitment to free speech.
About the Author
William E. Lee. Professor, Henry W. Grady College of Journalism and Mass Communication, University of Georgia.
Citation
72 Tul. L. Rev. 1261 (1998)