Believing Persons, Personal Believings

The Neglected Center of the First Amendment

In this article Professor Smith addresses how our conception of what it means to be a person influences First Amendment law. The arti-cle explains how the conception of the person as a believer elucidates the values that the First Amendment protects thereby providing a justification for why speech and expression are protected, and providing guidance regarding the general direction the legal doctrine should take. After discussing the shortcomings of conceiving of the person as interest-bearer, autonomous agent, and citizen, the article proposes a conception of the person as believer, explaining how believing is essential to personhood. The article concludes by exploring the implications of the believing person for First Amendment jurisprudences, specifically advocating the older “category” approach and casting doubt on the “neutrality” position that has come to dominate modern First Amendment jurisprudences regarding both speech and religion.

The full text of this Article is available to download as a PDF.