Duquesne Law Review


During the past two decades, the Supreme Court has decided a number of cases involving First Amendment challenges to anti-sex-discrimination legislation. American Booksellers Association, Inc. v. Hudnut is but one of these cases. In all of these cases, the Court was faced with the prospect of having to choose between protecting free expression rights or minority interests. This choice conflicts with the Court's conceptual First Amendment framework. Nevertheless, with the exception of Hudnut, the Court was able to avoid addressing the challenge to its First Amendment framework and yet uphold the antisex- discrimination legislation at issue. The Court was able to do so because the legislation at issue in all of the cases except Hudnut was theoretically compatible with the Court's liberal, categorical approach to free expression rights and its individualistic, public sphere-oriented approach to gender equality. Yet, despite their outcomes, these cases, as well as Hudnut, warn the Court that its framework is not viable. All of the cases suggest that the framework oversimplifies the relationship between First Amendment right, minority interests, and political and social change, providing the Court with an inadequate guide to reconcile freedom of expression with equality. This article suggests that these cases signal the need for a new First Amendment framework.

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