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The Contradictory Messages of Rehnquist-Roberts Era Speech Law: Liberty and Justice for Some

The Supreme Court under Chief Justices Rehnquist and Roberts has been characterized as pro-free speech, based in part on the Court’s protection of money as a form of speech in the campaign finance context. Parsing the tangle of free speech decisions for themes and patterns, this Essay highlights inconsistencies in the Court’s decisions on free speech issues. Looking beyond the familiar First Amendment rhetoric of self-expression, empowerment of the people, and triumphal American democracy, this Essay reveals stark differences between the Court’s treatment of modes of speech available to people of ordinary means, and modes available to corporations and the wealthy. The Court’s curtailment of rights related to the former, and expansion of rights related to the latter, skews, corrupts, and undermines the democratic process.

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