Document Type

Article

Publication Date

2000

Abstract

In this Article, I contend that First Amendment principles dictate a presumption against legislation that is based on predictive harms, but that the presumption will be overcome if a court independently determines that there is a likelihood of irreparable harm. Part I briefly discusses the level of harm required to justify legislation that infringes upon First Amendment rights. Part II turns to proactive legislation, giving some examples of predictive harms. Part III describes the Supreme Court's responses to legislative findings in the First Amendment context, and Part IV discusses the difference between predictive harms and other legislative findings. Part V addresses the circumstances under which there should be a presumption against legislation predicated upon predictive harms and concludes that, when the First Amendment is implicated, we should be wary about reliance on predictive but provable harms. This formulation leaves open the question of what might overcome this presumption. Part VI suggests that the answer is a likelihood of effectively irreparable substantial harm. Part VII then focuses on whether courts should defer to legislative predictions of such irreparable harm, concluding that, because we can have confidence in neither courts' nor legislatures' predictions, the presumption against these predictive harms counsels against deference and in favor of redundancy. Finally, Part VIII considers the application of this analysis to other predictions contained in legislation. The upshot is that a tempting option for governments - legislating before harms arise - merits skepticism rather than acceptance

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