Kansas Law Review, Inc.
It is hardly surprising that the Supreme Court has never developed a satisfying theory of the first amendment. Free speech and press problems are many and varied, demanding the most delicate balance of interests in order to preserve a system of freedom of expression and at the same time afford proper respect for competing governmental objectives. Doctrine adapted to one medium of expression may not sit well when applied to others. With the passage of time, changes in technology, economic conditions, and the very nature of expression tend to outstrip the Court's ability to keep pace with doctrinal innovations. There was a time when the first amendment meant little more than a prohibition on prior restraints of the press, and it was only in this century that the Court fashioned the ill-fated "clear and present danger" test for contending with subsequent penalties upon expression. Even as the Court grappled with the meaning of free speech for a few wartime dissenters, technological advancements transformed the communications industry in this country into an extraordinary complex of mass circulation newspapers supported by the great wire services, broadcast stations and networks using the electromagnetic spectrum, and community antenna systems relying upon microwave transmissions and the coaxial cable. Most importantly, control of the industry came rapidly into the hands of communications cartels wielding untold power over American affairs, public and private. Analyses designed for other times and other problems were no match for these challenges, and the Court groped for new tools with which to meet them.
Confessions of a Horizontalist: A Dialogue on the First Amendment
Kansas Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/1718