Reinvigorating Autonomy: Freedom and Responsibility in the Supreme Court's First Amendment Jurisprudence
Part I of this Article explores the conception of autonomy that scholars have generally attributed to the Court and discusses problems with that conception. Part II sets forth an alternative, Kantian conception of autonomy and discusses its implications for a system of laws regulating free expression. Part III analyzes the Court's free speech jurisprudence and its autonomy rationale. It specifically examines both the Court's distinction between content-based and content-neutral regulations of speech and its approach to low-value speech, demonstrating that they reflect a Kantian notion of autonomy. Finally, Part IV discusses the implications of Kantian autonomy for hate speech regulation, specifically focusing on the Court's controversial decision in R.A.V. v. City of St. Paul. This final Part demonstrates that a Kantian notion of autonomy may be able to bring people on both sides of the debate closer together regarding autonomy's place in the Court's free speech jurisprudence.
Christina E. Wells, Reinvigorating Autonomy: Freedom and Responsibility in the Supreme Court's First Amendment Jurisprudence, 32 Harv. C.R.-C.L. L. Rev. 159 (1997)