MacKinnon on “Weaponizing the First Amendment: An Equality Reading”

Catharine A. MacKinnon has published Weaponizing the First Amendment: An Equality Reading, 106 Va. L. Rev. 1223 (2020). Here is an abstract:

This Article traces how and why the First Amendment has gone from a shield of the powerless to a sword of the powerful in the past hundred years. The central doctrinal role of “content neutrality” and “viewpoint neutrality” in this development is analyzed; the crucial tipping points of anti-Semitism, in Collin v. Smith, and pornography, in Hudnut v. American Booksellers, are identified. The potential for substantive equality to promote freedom of speech is glimpsed.

The full article is available here. It is an expanded and developed version of some of the ideas sketched in Professor MacKinnon’s chapter, “The First Amendment: An Equality Reading” in The Free Speech Century (Lee Bollinger & Geoffrey Stone eds., Oxford University Press 2018).

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