How the Liberal First Amendment Under-Protects Democracy

By Tabatha Abu El-Haj. Full Text. 

This Article advances a distinct theoretical account of the First Amendment that stresses its role as the underwriter of a republican form of government. Predicated on a more accurate description of the processes of self-governance, the advanced theory delivers a construction of the First Amendment that actually protects democracy in all its facets. By contrast, as currently construed, the First Amendment operates to the detriment of democracy. A singular preoccupation with speech as the mechanism of self-governance obscures the critical role of political participation as conduct. Accordingly, disruptive assemblies get less protection than disruptive speech, and the Court is blind to the First Amendment interests in its most important election law cases. Meanwhile, in a variety of other contexts, the Court consistently over-protects speech, thereby undermining the capacity of legislatures to serve their most basic constitutional function—reaching provisional decisions on contested values. Taken together, these missteps result in a construction of the First Amendment that undermines democracy at a moment when American democratic institutions, and the First Amendment itself, are under extreme political pressure. Properly construed, the First Amendment can do better.