Much of the development of First Amendment law in the United States has occurred as a result of American courts rejecting well-established principles of English law. The U.S. Supreme Court has frequently rejected English law, permitting far more public criticism of the judiciary than would be countenanced in England, rejecting English libel law as being insufficiently protective of freedom of expression and holding that even hateful speech directed at minorities receives the highest level of constitutional protection. The Second Circuit has played a major role in the movement away from the strictures of the law as it existed in the mother country. In some areas, dealing with the clash between claims of national security and freedom of expression, the Second Circuit predated the Supreme Court’s protective First Amendment rulings. In others, dealing with claims of obscenity contained in literature, the Second Circuit moved down a path of free speech protection long before English courts did so. In still others, including libel, the Second Circuit followed Supreme Court rulings that had long since departed from English law in a variety of circumstances.
Free Speech and Civil Liberties in the Second Circuit,
85 Fordham L. Rev. 11
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