Looking Forward by Looking Backward: Brandeis’ Concurrence in Whitney v. California and the Future of Communication Law Scholarship

Abstract

In the decade following World War I, the Supreme Court of the United States decided a number of influential cases involving outspoken speakers, whose ideas were often less than popular. Against this backdrop, Justice Louis Brandeis introduced civic courage – the notion that public discussion of important issues is a political duty even when those ideas run counter to the status quo. Using his approach, this essay calls upon our most-established communication law scholars, asserting they are duty-bound to push our field and our scholarship forward. It outlines four areas in which we must undertake profound change to ensure the intellectual vibrancy of our scholarship and meaningfully commit to diversity and inclusion. By its very nature, ours must be a field that welcomes a robust exchange of ideas and viewpoints. It is past time to abandon the staid norms of First Amendment exceptionalism and traditional thinking about communication law.