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Beyond First Amendment Lochnerism: A Political Process Approach

Wu, Timothy

This paper suggests an “anti-circumvention” principle that may be usefully invoked in certain First Amendment cases. The principle would be used by the judiciary, in its discretion, to limit the use of the First Amendment to circumvent an ongoing and functioning political debate. More precisely: In cases where the underlying law does not censor political speech, nor arise from majoritarian prejudice against a despised or unpopular speaker, and particularly where the political debate is in progress, the judiciary should avoid using the First Amendment to give one side of the debate a judicially granted circumvention of democratic politics.

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