The Public Interest

The First Amendment and democracy

James Nuechterlein

Winter 1997

THE good news about The Irony of Free Speech † is that its author rejects the absolutist reading of the First Amendment that, short of yelling “Fire!” in a crowded theater, would prohibit any and all restrictions by government on freedom of speech. The bad news is that Yale Law School professor Owen M. Fiss’s own views on the subject are, if anything, even more pernicious than those of First Amendment purists. Fiss is a creative reader of the Constitution, and, as is usual with creative constitutional readings, restraint on the power of government— the judiciary in particular—enters the argument as, at best, an afterthought.

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