Emerson, Thomas I. The Affirmative Side of the First 32 Amendment, 15 Georgia L. Rev. 795 (1981)

Abstract

One of Thomas Emerson’s lasting contributions to understanding free speech is his emphasis on the system of freedom of expression, as his well-known book is titled. Free speech needs broad analysis that pays attention to supports for, as well as limitations of, speech; the freedom encompasses practices, principles and institutions as well as rights; and it is the structures underlying speech that should concern legal scholarship. The point is frequently recognized — scholarly references to a system of free speech following Emerson are common — but the positive or affirmative dimensions of Emerson’s approach are not always brought out. (The literature uses many terms for these aspects of the freedom; here I use both “affirmative,” after Emerson, and “positive,” which has currency across relevant disciplines.) While positive dimensions are evident in much of his work, they are encapsulated in “The Affirmative Side of the First Amendment.” The article is now somewhat poignant, for at least two reasons. The first is the confidence it displays in U.S. constitutional law developing and better supporting the system of public speech. While Emerson recognizes that U.S. affirmative doctrine is relatively inchoate, he sees the courts as moving toward clarifying and strengthening it: “[T]he courts are on a one-way road: to the extent that they are willing to act, the result can only be an expansion, not a restriction, of the system of freedom of expression.” In many ways, U.S. courts have not acted since then and such development has not (yet) come to pass, even as the environment in which public speech occurs has transformed. Second, the article