ERIC Number: ED202009
Record Type: Non-Journal
Publication Date: 1980-Aug
Reference Count: N/A
First Amendment Speech and Press Theory: Preferred Position Postulate Reexamined.
Stonecipher, Harry W.
If the United States Supreme Court is to exercise its historic role as guardian of the fundamental freedoms flowing from the speech and press clauses of the first amendment, it is imperative that those basic freedoms be placed in a preferred position. The preferred position doctrine provides adequate safeguards for both speech and press guarantees if it is carefully applied by the courts. This is true because the doctrine reflects more than its original emphasis upon elimination of the presumption of constitutionality employed during the 1940s. Not only does the doctrine have strong historical underpinnings, but its premises are applicable, individually or in tandom with other judicial doctrines, in a wide range of contexts. The doctrine also tends to place the courts in a more active role in protecting freedom of expression. While the preferred position approach may not give the absolute answers sought by the strict constructionists, it does supply standards for judicial judgments that would be more acceptable to first amendment libertarians than the balancing-of-interests approach presently being used by the Supreme Court. (FL)
Publication Type: Information Analyses; Speeches/Meeting Papers
Education Level: N/A
Authoring Institution: N/A
Identifiers - Laws, Policies, & Programs: First Amendment