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This chapter examines judicial doctrines to assess necessity. The Presumption of Liberty places the burden of establishing the propriety of laws on the government. Taking the First Amendment as a model, when law is used to accomplish a proper purpose by restricting the liberties of the people, the Presumption of Liberty imposes a burden on those defending the necessity of these restrictions to show two things. First, the government must prove that there is a sufficient “fit” between the liberty-restricting means it chose and the proper purposes it was seeking to attain. Second, the government must demonstrate that there were no less restrictive alternatives to the liberty-restricting means that were chosen. The chapter applies the Presumption of Liberty to particular cases, such as unenumerated rights and the right to keep and bear arms.

For an analysis of the “legal context” in which speech is at issue, one might most naturally turn to the development of judicial doctrine. But the history of attempts to demarcate the legal boundaries of speech is mostly a history of failed and inconclusive efforts, as even a brief review will show. Nevertheless, a few helpful clues also emerge. This chapter examines three legal doctrines that have been used to set boundaries on what counts as speech for constitutional purposes: prior restraints, obscenity, and defamation. Briefly, these doctrines start off by claiming that prior restraints, obscenity, or defamation define what is not speech; but, as this chapter, that claim has been unraveled by subsequent judicial decisions in all three areas. So these doctrines do not serve, even negatively, as a definition of speech for legal or constitutional purposes. They do not set the “outer boundaries” of speech.

This chapter investigates the concept of the greater the governmental need the better the justification for intruding upon baseline rights and liberties. As an example, it explains that a legislature may have license to pursue a compelling need by means claimed necessary even while deviating from strict protection of a constitutional right. It explains how necessity can enhance or diminish the scope of pre–existing powers of a defined government office, such as granting a president confronting a military emergency with wide discretionary latitude to act with enhanced executive powers without having to claim new ones. The chapter also assesses how channeling executive discretion into a judicial doctrine of “exigency” enhances the scope of government action in relation to a protected right. It focuses on counterterrorism surveillance practices, which argues that the existence of exigency doctrines provides ways to normalize necessity in everyday governing practice.

The Court's recent rulings indicate that its support for arbitration remains unfailing. These cases address adhesive arbitration, perhaps the most controversial part of the judicial doctrine on arbitration. In fact, adhesive arbitration challenges the contract freedom principle. It represents the unilateral imposition of a legal obligation to arbitrate upon the weaker transactional party by the economically stronger party. The unfairness of the adhesive circumstances can be remedied through the doctrine of unconscionability by voiding the agreement to arbitrate. In two landmark cases (AT&T Mobility and Italian Colors Restaurant), the Court upheld adhesive arbitration, concluding that the marketplace had made adhesion a proper vehicle for contract formation and that class action waivers were enforceable as a legitimate part of the bargain for arbitration. Moreover, arbitration did not compromise statutory rights. Finally, Sutter and BG Group reaffirmed the vitality of Bazzle and the arbitrator's authority to interpret the arbitral clause.