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Copyright (c) 1996 University of Chicago
University of Chicago Law Review

ARTICLE: THE ONCE AND FUTURE PROPERTY-BASED VISION OF THE FIRST AMENDMENT

Winter, 1996

63 U. Chi. L. Rev. 49

Author

John O. McGinnis *

Excerpt

INTRODUCTION: THE FIRST AMENDMENT AND CHANGING SOCIAL THOUGHT

The growth of the information superhighway depends not only on technological developments, but also on our society's commitment to the free flow of information. Paradoxically, however, as the digital revolution in telecommunications is bringing the information superhighway into sharp focus, the justifications for contemporary First Amendment jurisprudence are becoming blurred.

For about the last fifty years, free speech has been the preeminent constitutional right, continually expanded by Supreme Court justices of varying jurisprudential views to protect ever more varied and vigorous expression. With few exceptions, this development has been welcomed by jurists and academics across the political spectrum. Given this consensus, the concept of freedom of speech has also taken deep roots in our popular and political culture. 1 Now, however, the social paradigm that was the source of the expansion is being challenged, and with it the foundations of the First Amendment theory that protected so much expression.

Much of the impetus for the First Amendment's ascension to the apex of constitutional law lies in the New Deal's ideal of social democracy and the subsequent transformation of the federal government into a vigorous instrument of social reform. To gain the centralized authority necessary for large scale social reform, the federal government had to liberate itself from the features of the original design that had been intended to limit its power. 2 Thus, the structural checks of federalism and separation of powers were substantially weakened. 3 Moreover, substantive restraints on governmental programs ...
 
 
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