Hastings Constitutional Law Quarterly Volume 42 Article 3 Number 4 Summer 2015 1-1-2015 Evaluating the Sociology of First Amendment Silence Mae Kuykendall Follow this and additional works at: https://repository.uchastings.edu/ hastings_constitutional_law_quaterly Part of the Constitutional Law Commons Recommended Citation Mae Kuykendall, Evaluating the Sociology of First Amendment Silence, 42 Hastings Const. L.Q. 695 (2015). Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol42/iss4/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Constitutional Law Quarterly by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact
[email protected]. Evaluating the Sociology of First Amendment Silence by MAE KUYKENDALL* Introduction Silence is that curious answer to the riddle, "What is golden and disappears when you speak its name?" In the context of First Amendment jurisprudence, Silence is just as puzzling as a riddle. Silence may be used as a verb, as in, to cause a speaker to cease speaking or as a noun, as in, the absence of speaking or sound. In either form, Silence has long been recognized as a rhetorical vehicle for expression. As it is wont to do, Silence often sits quietly in the interstices of First Amendment doctrine. But when she speaks, she roars. When Silence becomes speech, and that speech becomes law, Silence can get a thumping for its unseemly intrusion. The thumping of silence as legal doctrine, such as it has been, was a product of the Court's rescue of the Boy Scouts in Boy Scouts of America v.