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2023 Annual Meeting: First Amendment Fetishism (2023)

First Amendment Fetishism (2023)

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Originally presented on July 28, 2023, as part of the 2023 Annual Meeting

Since 1971, the US Supreme Court has been criticized for protecting speech that is considered vulgar, hurtful, and dangerous, against the wishes of the community. Examples of such offensive speech include a teacher repeatedly using the F-word in front of school children, a white supremacist burning a cross on the lawn of a black family, and the public burning of the American flag. This article argues that the community's desire to create a culture of civility and mutual respect should be given more deference by the courts when regulating offensive speech. Drawing on originalism, the article proposes a jurisprudence that prioritizes the community's right to regulate such speech.

Professor John Min Kang, UNM School of Law