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52 Alabama Law Review 1213 (2001)


The First Amendment is often analyzed using the metaphor of the marketplace of ideas. Making use of memetic analysis, this article suggests that ideas should not be treated as inert products that we choose but as living things that sometimes exert some influence over their environment. Some of the ideas are more adept at surviving than others, and the ones that survive will not necessarily be good for humans. To account for the ability of some memes to replicate dangerously, the First Amendment should be read to allow governments to punish a speaker who advocates or threatens physical injury (other than punishment by the state) to the person or possessions of those who promote, oppose, or fail to espouse a certain idea. In other words, the constitution should allow us to be somewhat more intolerant of intolerance.