A number of recent Supreme Court opinions, primarily in the obscenity area, have fastened strict procedural requirements on governmental action aimed at controlling the exercise of first amendment rights. Professor Monaghan believes that there are two basic principles that can be distilled from these cases: that a judicial body, following an adversary hearing, must decide on the protected character of the speech, and that the judicial determination must either precede or immediately follow any governmental action which restricts speech. The author argues that these two broad principles should limit any governmental activity which affects freedom of speech, no matter how indirectly. In conclusion, he suggests that courts must afford affirmative remedies in order to give full protection to first amendment interests.
Henry P. Monaghan,
First Amendment "Due Process",
Harv. L. Rev.
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