著者

小林 伸一

出版者

日本法政学会

雑誌

法政論叢 (ISSN:03865266)

巻号頁・発行日

vol.42, no.2, pp.98-131, 2006-05-15

---

There is a large academic literature on overall values served by the First Amendment, U.S. Const. Amendment. I is Free Speech and Press Glaus e. The marketplace, self-government and autonomy are most frequently invoked. Principle-based theories on First Amendment theory argue these values as basis for justifications for the special protection afforded freedom of expression. Each of these theories makes some claim to provide a foundational basis for the First Amendment. Recently, The Supreme Court gives some measure of protection to hate speech as cross-burning and organizational forms and activities having expressed their antihomosexual views. Do any of the principle-based theories apply to cross-burning or activity to a discriminate homosexual conduct? Do these activities subserve the values that hold up in those theoies? Taking this opportunity, Non principle-based theories come to the front. This article traces comparatively three representative theorists in the non principle-based theory. The following assertions are presented by them. Stanly Fish exhibits perspectives from literary theory applied to First Amendment jurisprundence. He insists that any theory of free speech must reflect a substantive political content. Thus, the abstraction at the center of First Amendment jurisprudence- marketplace, self-government, autonomy-do not in themselves point us to the appropriate distinctions. Richard Posner has his root in "Law and Economics". And his philosophy is pragmatism. Posner argues that because the legal concept of freedom of speech is plastic, mutable, and contestable it may appropriately take its shape from the practical considerations the instrumental approach bring into view. He employs cost-benefit analysis to explore when government can regulate expression which has a public good. Frederick Schauer relies on analytic philosophy modified by traditional common law theories. He claims the importance of seeing rules as crude probablistic generalizations. And Schauer distinguishes between conversational and entrenchment models of generalization, but he doesn't grasp each models as an exclusional reason. He argues that the legal system takes freedom of speech as a given, devoting little if any attention to the philosophical foundation of the principle it seeks to enforce. Schauer focuses on less various values served by the First Amendment than on the special reason to distruct government in the realm of speech regulation.