Southern Dreams and a New Theory of First Amendment Legal Realism

When legal realism swept through the law nearly a century ago, spelling the end to what Roscoe Pound called ¿mechanical jurisprudence,¿ one enclave that emerged unscathed is the First Amendment, where shopworn rules, hidebound doctrinal boxes, and thought-ending clichés still hold sway. We show how this is so and give examples of a number of areas where change is in order. An examination of federal court cases having to do with hate speech and cross burning, as well as the wave of nativist sentiment that swept the South in the wake of increased Latino immigration, show how an application of legal realism would improve society¿s ability to respond more quickly and flexibly to change.