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Notre Dame Legal Studies Paper No. 1434 (August 5, 2014)


The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech. Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article contends that within the First Amendment context, there is no such presumption. When the Court concludes that a precedent reflects a cramped vision of expressive liberty, adherence to the past gives way. Unfettered speech, not legal continuity, is the touchstone. The best explanation for this phenomenon is the role of free speech in the constitutional order. The Court’s tendency is to characterize affronts to expressive liberty as dangerous steps toward governmental repression and distortion. From this perspective, it is little wonder that the Court eschews continuity with the past. Legal stability may be significant, but official orthodoxy seems like an excessive price to pay. Yet the Court’s practice raises serious questions. Departures from precedent can be problematic, especially when they become so frequent as to compromise the notion of constitutional law as enduring and impersonal. If the doctrine of stare decisis is to serve its core functions of stabilizing and unifying constitutional law across time, the desire to protect expressive liberty must yield, at least occasionally, to the need for keeping faith with the past.



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