The Taft Court (1921–30)

First Amendment

Which foundational First Amendment principle did Brandeis’s opinion articulate?

One of the fundamental principles of First Amendment jurisprudence is that the government should respond to harmful speech by countering it with positive speech. In other words, the government should not silence negative speech but rather express a better alternative and show why the negative speech is wrong. This is called the counter-speech doctrine.

Brandeis provided the justification for the counter-speech doctrine: “If there be time to expose through discussion the falsehood and fallacies, to aver the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”


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