The Coverage/Protection Distinction in the Law of Freedom of Speech – An Essay on Meta-Doctrine in Constitutional Law
61 PagesPosted: 27 Apr 2016Last revised: 7 Jun 2016
Date Written: April 26, 2016
The distinction between the First Amendment’s coverage – those human activities the regulation of which is evaluated by invoking the First Amendment – and the protection it affords – the conditions under which a regulation violates the First Amendment – has been an important component of the Amendment’s doctrinal architecture. Recent Supreme Court decisions place significant pressure on the coverage/protection distinction. This Essay examines those cases and the ways in which intuitively attractive results might be precluded by abandoning the distinction. Salvaging those results is possible, but only by deploying analytical moves that run athwart a constitutional “meta-doctrine,” which I call the “too much work” principle. In addition to contributing to understanding the coverage/protection distinction and the Court’s recent decisions, the Essay explains the role that meta-doctrines play in constitutional architecture more generally.
Keywords: First Amendment, Reed v. Gilbert
Suggested Citation:Suggested Citation
Tushnet, Mark, The Coverage/Protection Distinction in the Law of Freedom of Speech – An Essay on Meta-Doctrine in Constitutional Law (April 26, 2016). Harvard Public Law Working Paper No. 16-26. Available at SSRN: https://ssrn.com/abstract=2770774
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Mark Victor Tushnet (born November 18, 1945) is a leading scholar of constitutional law and legal history, and currently the William Nelson CromwellProfessor of Law at Harvard Law School.
Tushnet received his A.B. from Harvard College. He later received an M.A. in history from Yale University and his J.D. from the Yale Law School. Tushnet has been a faculty member at the University of Wisconsin–Madison, and he taught for many years at the Georgetown University Law Center.
Tushnet served as a law clerk to JusticeThurgood Marshall on the Supreme Court between 1972 and 1973. In a 1996 congressional hearing on President Bill Clinton's veto of the Partial-Birth Abortion Ban Act, Tushnet testified about his involvement in Roe v. Wade, the 1973 case that struck down state laws prohibiting abortion. During questioning it was alleged that a memorandum written by Tushnet to Marshall had a significant influence on the outcome of the case.
One of the more controversial figures in constitutional theory, he is identified with the 'critical legal studies' movement and once stated in an article that, were he asked to decide actual cases as a judge, he would seek to reach results that would "advance the cause of socialism". Tushnet is a main proponent of the idea that judicial review should be strongly limited and that the Constitution should be returned "to the people." Tushnet is, with Harvard Law Professor Vicki Jackson, the co-author of a casebook entitled Comparative Constitutional Law (Foundation Press, 2d ed. 2006).
Tushnet is a nonobservant Jew. His wife, Elizabeth Alexander, is a Unitarian. and formerly directed the National Prison Project of the American Civil Liberties Union. She now works in private practice. Their daughter Rebecca Tushnet is a professor of law at Georgetown University Law Center, and their daughter Eve is a celibate lesbian Roman Catholic author and blogger.
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