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CHAPTER 8

The First Amendment: Freedom of Speech and of the Press

§8.1 INTRODUCTION AND OVERVIEW

As usual, we begin with the text. The words are simple and straightforward: “Congress shall make no law … abridging the freedom of speech, or of the press.” There is power in this simplicity. The blunt proscription would seem to preclude any legislation that limits or punishes the protected activities. No law. But as the length of this chapter attests, the simplicity of text does not translate into a paucity of doctrine, and the doctrines rarely, if ever, speak in terms of absolutes. Rather, the freedoms of speech and press are, like other rights protected by the Constitution, both contextual and contingent, providing a range of possibilities as varied as the human imagination. The text is not, however, meaningless. The seemingly absolute proscription, at the very least, describes a powerful constitutional commitment to the freedoms of speech and press. That is our starting point.

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