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Confessions of a Free Speech LawyerCharlottesville and the Politics of Hate$
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Rodney A. Smolla

Print publication date: 2020

Print ISBN-13: 9781501749650

Published to Cornell Scholarship Online: January 2021

DOI: 10.7591/cornell/9781501749650.001.0001

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The Marketplace Doubles Down

The Marketplace Doubles Down

(p.115) 16 The Marketplace Doubles Down
Confessions of a Free Speech Lawyer

Rodney A. Smolla

Cornell University Press

This chapter focuses on the shift from the order and morality theory to the marketplace theory that took place in a series of landmark cases that span decades. It recounts events wherein the First Amendment upheld the right to protect critiques of public officials in 1964, rights of racists to engage in rituals such as cross burning in 1971, and right to protect the burning of the American flag in 1989. It also reviews the First Amendment principles of the modern epoch that exerted a powerful gravitational pull on the events in Charlottesville in 2017. The chapter mentions Paul Cohen who was arrested for wearing a jacket designed with a vulgar message and convicted of tumultuous and offensive conduct. It notes how Cohen's involvement with graphic language made a shift to the marketplace theory that embraces the protection for the graphic use of symbols.

Keywords:   order, First Amendment, cross burning, American flag, Paul Cohen, morality, marketplace theory

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