Wednesday, March 1, 2023
Kang On Against Political Speech @UNM_Law
John M. Kang, University of New Mexico School of Law, is publishing Against Political Speech in volume 22 of the Nevada Law Journal (2022). Here is the abstract.
The Supreme Court has dedicated itself to the proposition that political speech, more than any other category of speech, is deserving the highest protection. This Article argues that the Supreme Court’s heightened protection for political speech is unjustified. The Article is organized as follows. Part I summarizes how the Supreme Court has privileged political speech. Part I then identifies two arguments that have been enlisted by the Court and scholars to support the contention that political speech deserves the highest protection from the Constitution. The Article will explain why both arguments are unpersuasive. Even if scholars and the Supreme Court were able to defend their position that political speech deserved the highest protection, Part II will argue that the effort to afford special protection to political speech is nevertheless unfeasible. For “political” speech is much too difficult to define. Part III raises a different objection to the Court’s elevation of political speech. The heightened protection that the Court has granted to political speech frequently comes at the cost of two essential goods which are indispensable to society: civility and dignity. Part III argues that the Court has failed to justify why political speech should take precedence over these countervalues.
Download the article from SSRN at the link.