a. Dave says First Am. scholars overestimate the importance of
Cohen. “If the court came out the other way, it would not make much
of a difference to me. I just do not think not being able to wear a
jacket that says ‘fuck the draft’ in a courtroom is a core First Am.
issue. It is peripheral and really would not affect our First Am.
rights if the Court had held the opposite that it did.” Dave say
that the Court, by quoting Brandeis’ eloquent writing about the
importance of free speech in the concurrence of Whitney, cheapens the
importance of the concurrence and the issue involved in Whitney. To
quote Whitney as support for a person’s right to say “fuck the draft”
just does a disservice. Whitney involved articulate political
speech; Cohen involves emotional, cheap speech.
b. Dave says the best response to his above feelings is that the
“peripheral” First Am. issues (such as that involved in Cohen) are
just important as the “core” issues (such as that involved in Debs,
Abrams, etc.) because they are often more difficult to decide.
Furthermore, there is always the chance that the slippery-slope will
apply to the “peripheral” issues. If the Court says the First Am.
does not protect “fuck the draft” jackets, will it next say that no
harsh language can be used at any protests?
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