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It is a pleasure to have the opportunity to comment upon Professor Neuborne's paper; it is a provoking effort to make sense out of important aspects of the first amendment. At the outset, I should say that there is much in the paper with which I agree. But for the purposes of this essay I will focus on points of disagreement.

Professor Neuborne's specific focus is an analysis of the Security and Exchange Commission's (SEC) regulation of speech. The final twenty-one pages of his paper are directly concerned with analysis and criticism of the existing case law on the subject. Quite properly, the first thirty-five pages are an effort to articulate a general first amendment theory that will adequately frame and support his more specific discussion of SEC law. Given the composition of this group of commentators, I think it perhaps most useful to confine my remarks to the general theory contained in the first thirty-five pages, leaving the SEC discussion entirely to others.

Professor Neuborne posits a central distinction between speaker-centered and hearer-centered theories of the first amendment. This distinction is advanced at two different levels, one historical and the other theoretical. I should like to examine each level.


Law | Securities Law