Título: | THE DECISION-MAKING METHODOLOGIES OF THE FREEDOM OF SPEECH: A STUDY ABOUT THE RELATIONSHIP BETWEEN FORM AND SUBSTANCE IN THE FIRST AMENDMENT S DOCTRINES | ||||||||||||
Autor: |
JOHANN MEERBAUM |
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Colaborador(es): |
NOEL STRUCHINER - Orientador |
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Catalogação: | 08/SET/2023 | Língua(s): | PORTUGUESE - BRAZIL |
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Tipo: | TEXT | Subtipo: | THESIS | ||||||||||
Notas: |
[pt] Todos os dados constantes dos documentos são de inteira responsabilidade de seus autores. Os dados utilizados nas descrições dos documentos estão em conformidade com os sistemas da administração da PUC-Rio. [en] All data contained in the documents are the sole responsibility of the authors. The data used in the descriptions of the documents are in conformity with the systems of the administration of PUC-Rio. |
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Referência(s): |
[pt] https://www.maxwell.vrac.puc-rio.br/projetosEspeciais/ETDs/consultas/conteudo.php?strSecao=resultado&nrSeq=63918&idi=1 [en] https://www.maxwell.vrac.puc-rio.br/projetosEspeciais/ETDs/consultas/conteudo.php?strSecao=resultado&nrSeq=63918&idi=2 |
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DOI: | https://doi.org/10.17771/PUCRio.acad.63918 | ||||||||||||
Resumo: | |||||||||||||
This is a paper about the nature of the reasons that the United States Supreme
Court uses to resolve cases involving freedom of speech. I believe that there are two types
of reasons that guide the First Amendment decision-making process: formal and
substantive. Substantive reasons are those that law shares with other domains of human
social action, such as morality, economics and politics. Formal reasons, in turn, are
authoritative legal reasons - in the sense that they derive from a valid legal norm
(Constitution, laws, regulations, precedents, contracts, and other related normative
documents) - and compulsory (or exclusionary), because they generally exclude
competing substantive reasons from the horizon of decisional reasoning. My aim in this
dissertation is to describe the way in which formal legal reasoning and substantive legal
reasoning have to some extent been reconciled at the heart of the decision-making practice of the US Supreme Court. To this end, I endeavor to present, comment on and compare with each other some of the most emblematic judgments carried out by the Court over more than a century of First Amendment constitutional jurisdiction. I also try to show that the adjudicatory methods she has developed can be classified according to the importance each of them attaches to the formal reasons (or, on the other hand, the substantial reasons) for freedom of discourse. For example: the conflict between balancing and the
methodologies belonging to the definitional tradition (e.g., absolutism, categorization)
represents nothing more than a particular instance of the more general conflict between
form and substance in American legal thought. But while until the mid-1960s the
discussion about methods of deciding freedom of speech was completely dominated by
the opposition between balancing and absolutism, little by little the United States
Supreme Court, in company with the great names of legal thought in that country, opened
its eyes to the existence of middle points between those two extremes. The result was the
creation of new normative theories of decision (e.g., definitional balancing), as well as a
series of tests, formulas, parameters and presumptions, thus making it possible for formal
and substantive elements of First Amendment legal reasoning to coexist in the realm of
the same decision-making methodologies. Beyond my effort to rationally reconstruct the
transformations that the Supreme Court s methodological approaches have undergone
over the last few decades, I also propose to give them some meaning. I argue that the
Court s historical concern with the stabilization of its decision-making procedures, as well
as with the predictability of its judgments, is closely related to the belief that the
justifications underlying the First Amendment (e.g., greater control of government by the
people; the search for truth; and artistic and intellectual self-expression) are most
effectively promoted by adopting a decision-making approach that prioritizes the
achievement of better outcomes on a global level over what often appears to be the best
outcome for the most immediate case.
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