Commentators generally agree the First Amendment is hostile to paternalism. Yet, most analysts invoke the idea of free speech antipaternalism without examining its roots, explaining what it means, or discussing what it entails. There has been no attempt to identify and to explain the antipaternalism principle across a variety of free speech domains. This Article examines the nature and reach of this particular brand of First Amendment exceptionalism.
In Part I the author reviews First Amendment jurisprudence where the Supreme Court evinces, either explicitly or implicitly, some aversion to paternalism. This review covers several free speech frontiers, including commercial speech, lawyer solicitation and advertising, political parties, sexual speech and related zoning laws, charitable fundraising, campaign finance, and corporate speech. Part II identifies the contours of the antipaternalism principle. Part III examines the relationship of the antipaternalism principle to prominent negative and positive theories of the First Amendment, including the self-government, autonomy, and marketplace rationales for the protection of free speech. Part IV anticipates, and seeks to rebut, criticisms of the antipaternalism principle.
Creighton Law Review
First Amendment, free speech, antipaternalism
Dale Carpenter, The Antipaternalism Principle in the First Amendment, 37 Creighton L. Rev. 579 (2004)