| Acknowledgments | xi |
| Introduction | 3 |
I. | "Congress Shall Make No Law..." | 5 |
A. | Preferred Liberties | 5 |
B. | Historical Background to the First Amendment | 7 |
C. | The Search for a Unified Reading | 15 |
D. | Some Useful Terms | 25 |
II. | "...Abridging the Freedom of Speech": From Clear and Present Danger to the Categorical Approach | 31 |
A. | Libel and the Meaning of Sedition | 31 |
B. | The Focus on Circumstances: The "Clear and Present Danger" Test, 1919-1969 | 38 |
C. | The Categorical Approach: Fighting Words, Obscenity, and Libel | 46 |
D. | General Principles | 57 |
1. | Regulation of Speech in a Public Forum | 58 |
2. | Limited Forums | 66 |
III. | The Categorical Approach Revisited: Libel, Obscenity and Indecency, Sexual Harassment, and Hate Speech | 72 |
A. | Libel | 74 |
B. | Obscenity and Privacy | 74 |
1. | Defining Obscenity | 74 |
2. | Protecting Privacy | 80 |
3. | Special Protections for Children | 85 |
C. | Indecency and Public Spaces | 89 |
D. | Sexual Harassment | 106 |
E. | Hate Speech: Reconsidering the Categorical Approach | 109 |
F. | Commercial Speech | 118 |
G. | Campaign Contributions and Expenditures | 123 |
IV. | Speech-Plus and Expressive Conduct; Compelled Speech and the Right of Association | 127 |
A. | Speech-Plus and Expressive Conduct | 127 |
B. | Compelled Speech and the Right of Association | 145 |
1. | Compelled Speech | 145 |
2. | Association and Compelled Association | 150 |
V. | "Congress Shall Make No Law Respecting an Establishment of Religion..." | 164 |
A. | Subsidies for Religious Activities | 168 |
B. | Endorsement | 189 |
1. | Public Prayers | 190 |
2. | Public Displays | 203 |
3. | Revisiting the Question of Legislative Intent: Endorsement and School Curricula | 210 |
C. | The Establishment Clause and the Problem of Accommodation | 216 |
VI. | "...Or Prohibiting the Free Exercise Thereof" | 218 |
A. | What is a "Religion"? | 225 |
B. | What is a "Law Prohibiting the Free Exercise" of Religion? | 230 |
VII. | Government as Speaker; Access Cases | 258 |
A. | Government as Speaker | 259 |
B. | Access to Public Facilities | 272 |
C. | Access to Public Support | 278 |
VIII. | Freedom of the Press | 292 |
A. | Prior Restraints | 292 |
B. | Libel and Invasion of Privacy | 301 |
C. | Limits on Newsgathering | 321 |
D. | Reporter's Privilege | 328 |
E. | The Special Case of Broadcast Media: The Rise and Fall of the Equal Time Doctrine | 333 |
IX. | Rights of Assembly and Petition | 340 |
A. | Assembly | 340 |
B. | Petition | 344 |
X. | Three Views of the First Amendment; the First Amendment and the Problem of Equality; the Future of the First Amendment | 362 |
A. | Approaches to Understanding the First Amendment | 362 |
1. | The Affirmative Approach | 363 |
2. | The Negative Approach | 366 |
3. | Test Cases: Access and Association | 368 |
4. | Another View: The Activist Approach | 371 |
B. | The First Amendment and the Problem of Equality | 373 |
C. | The Future of the First Amendment | 394 |
| Table of Cases | 401 |
| Sources | 415 |
| Index | 419 |