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3 - The First Amendment As a Source of Positive Rights

The Warren Court and First Amendment Easements to Private Property

Published online by Cambridge University Press:  02 August 2019

Ronald J. Krotoszynski, Jr.
Affiliation:
University of Alabama
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Summary

The Warren Court’s creative use of the First Amendment as a font of affirmative governmental duties to facilitate speech related to the process of democratic self-government began, but did not end, with its decisions requiring the government to make public property available for speech activities.1 In addition, the Warren Court extended First Amendment rights of access to private property if particular privately owned property served as an essential locus of democratic deliberation2 – the contemporary equivalent of the municipal park at issue in Hague.3 Accordingly, even if a skeptical reader remains unconvinced by my claim that the Warren Court conceived of the First Amendment as a source of both positive and negative rights, its approach to mandating access to private property for First Amendment activity provides further, and quite striking, support for this argument.4

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Publisher: Cambridge University Press
Print publication year: 2019

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