First Amendment Fetishism

This Article has not argued for the propriety of restricting speech as a good in its own right. Rather, it argues the Supreme Court has gone too far in protecting the right of highly offensive speech. Instead of weighing the value of such speech in relation to its harms on the community, the Court has eagerly embraced a fetishistic attitude toward the right of speech. This Article has suggested, however, that said fetishism is inconsistent with the original understanding of the right of speech.

This Article culled the insights provided by the original understanding of the right of speech and then endeavored to fashion them into a jurisprudence that respected the rights of the community. Specifically, this Article has suggested that under the community rights approach to the right of speech that a given law should be upheld if the speaker has reasonable alternatives to express his objectionable speech.