The First Amendment historically has been interpreted to provide greater and greater protection to more and more forms of expression. The notion of an originalist First Amendment has never commanded a majority of the Supreme Court and is unlikely to do so. Instead the development of the First Amendment has followed a common law trajectory. As the reach of its protections expands, so to do its attractiveness for arguments that may be more accurately located elsewhere in the Constitution's text. Such opportunism is a predictable, even necessary consequence of the First Amendment's common law development, and the Supreme Court tacitly endorses such opportunism by consistently declining to issue saving constructions to laws that implicate the First Amendment. While both Justice Thomas and Justice Alito have recently offered anti-opportunism readings of the First Amendment, neither is likely to garner a majority. The common law First Amendment-and the opportunistic use of it-will continue apace.
"The Necessary Opportunism of the Common Law First Amendment,"
Tennessee Journal of Law and Policy: Vol. 9
, Article 5.
Available at: http://trace.tennessee.edu/tjlp/vol9/iss1/5