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Freeing SpeechThe Constitutional War over National Security$
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John Denvir

Print publication date: 2010

Print ISBN-13: 9780814720141

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814720141.001.0001

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(p.57) 3 The Rise and Fall of the First Amendment

(p.57) 3 The Rise and Fall of the First Amendment

(p.57) 3 The Rise and Fall of the First Amendment
Freeing Speech

John Denvir

NYU Press

This chapter examines the rise and fall of the First Amendment. It begins with a historical background on the First Amendment before turning to a series of free speech cases in the 1960s involving civil rights, whereby the Supreme Court offered a glimpse of how the First Amendment is constitutionally interpreted. In particular, it considers a series of dissents by Justices Oliver Wendell Holmes and Louis Brandeis in the 1920s in cases involving laws punishing antiwar dissent during World War I. It then discusses free speech and national security issues during the McCarthy era, along with the civil rights movement's attempt to end segregation in the South and how the Warren Court expanded free speech protections to open up the political system to dissenting voices. It also comments on the emergence of a constitutional First Amendment challenger that eventually became the official First Amendment. The chapter argues that the adoption of a broad vision of presidential power in national security affairs, coupled with the weak official interpretation of the First Amendment, undermines American democracy.

Keywords:   free speech, Supreme Court, Oliver Wendell Holmes, Louis Brandeis, dissent, national security, civil rights movement, segregation, presidential power, American democracy, First Amendment

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