ABSTRACT
Hans A. Linde argues that the "realistic" judicial effort to create a vigorous system of free debate centers too much attention on the courts, thereby distorting and subverting the responsibilities of other institutions. Enthusiasm for Near v. Minnesota as a landmark of liberty is sobered by how much was conceded on the way to achieving its formal establishment of liberty of speech and of the press under the Fourteenth Amendment and the doctrine against previous restraints. There is a profound difference between reading the First Amendment as it is written, as a limitation on permissible laws, and reading it only to provide legal immunity when an individual is found entitled to it in the concrete situation. When a constitutional prohibition is addressed to lawmakers, as the First Amendment is, the role that it assigns to courts is the censorship of laws, not participation in government censorship of private expression.
