Fear and the First Amendment: Controversial Cases of the Roberts Court

Smith (emeritus, communication studies, California State Univ., Long Beach; Confessions of a Presidential Speechwriter) and Center for First Amendment Studies director Johnson (communication studies, California State Univ., Long Beach) argue here that fears of various types and intensities have challenged and framed First Amendment jurisprudence. The amendment was, after all, born out of fear that the new federal government would suppress individual rights. Johnson and Smith use nine cases to illustrate the rhetorical and substantial role of fear in balancing conflicting values that characterize the U.S. Supreme Court’s First Amendment decision making since John Roberts became the chief justice in 2005. The central question posed in each of the cases reveals the fears attached to actual or exaggerated dangers. For example, is the notion that video games can make children violent an actual or exaggerated danger? Is it rational to fear that unlimited corporate and union contributions to political campaigns are corrupting democratic elections? Instead of examining answers to those and other questions, Johnson and Smith identify and analyze the rhetorical strategies and structures that were used to argue and decide the questions in the first place.