Arizona Law Review
A robust, principled application of the First Amendment produces contradictions that undermine the very justifications for free speech protections. Strong free speech protections are justified by the idea that rational, informed deliberation leads to peaceful decision-making, yet our marketplace of ideas is crowded with lies, reductive narratives, emotional appeals, and speech that leads to violence. Our current First Amendment model creates pathologies in discourse, which I term problems in speech quality and problems of speaker identity, that are exacerbated in our modern age of easy communication. The reason for these pathologies lies in the relationship between reason and emotion, both in human psychology and in First Amendment doctrine. This relationship is complex, and there are personal, psychological reasons that people are incentivized to engage in speech that is not truth-oriented. However, the solution to these speech pathologies is not to dramatically alter First Amendment doctrine, which, despite claims that the First Amendment is ill-equipped to deal with modern problems, is needed now more than ever.
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Goldberg, Erica, "First Amendment Contradictions and Pathologies in Discourse" (2022). School of Law Faculty Publications. 117.