Modern Free Speech Is More Originalist Than You Think

This is a guest post by Tyler Broker, affiliate Privacy & Free Expression research fellow. Tyler’s new article, Free Speech Originalism, will be published in the Albany Law Review and is currently available in draft form on SSRN.

During my time in law school, the biggest disagreements I witnessed among my peers were over the basic premises of originalism. Whether the Constitution was meant to have a static meaning or whether historical inquiry provided the best methodology for understanding Constitutional provisions, were hotly contested and I often couldn’t help getting myself dragged into the debate. I remember thinking the reason the debate kept raging on was that each side could point out flaws that the other side could never sufficiently overcome.

Legal scholars and theorists have many good reasons to refrain from straying too far from originalism when interpreting the Constitution. But when it comes to free speech law, the conventional wisdom about original intent is an embarrassment.

When applying a strict originalist view towards the First Amendment’s free speech clause, the lack of a First Amendment strike down of the Sedition Acts and other categorical restrictions made during the pre-modern era appear as convincing evidence that the original intent for the Amendment accommodated expansive and heavy-handed government restraints on speech. Accordingly, many originalists view the modern-era of free speech jurisprudence, beginning with Justice Oliver Wendell Holmes’ dissent in Abrams, as a “decisive break” with original intent because of the era’s expansive view of protection. However, this view of a decisive break from history became more puzzling the more I examined Holmes’ position. Holmes’ dissent in Abrams did not reject history, in fact his position and his eventual Clear and Present Danger standard relied primarily on historical interpretation.

What, then, could explain why Holmes found such a different standard of protection than what had been the norm for over a century? The answer it turns out was modest and largely consistent with the Founders’ intent: Holmes had simply followed the evidence.

My Article draws on a common variable between the pre-modern and modern era periods of free speech jurisprudence: an evidence-based test of the effects of speech. The test since the founding requires the government to prove, using the best available evidence of the time, that the speech in question will cause genuine harm. If viewed through the lens of this test, first established by the Founders, the highly deferential jurisprudence of the eighteenth and nineteenth centuries and the more robust protections of the modern era become a progression compatible, and without significant deviation, from original constitutional intent. The difference is explained not by extraordinary shifts in the law, but in the greater access to reliable evidence about the true risks of speech and censorship. Moreover, this Article will demonstrate that if the evidence-based test was applied today in accordance with its original intent as a limiting principle on government authority, the protection of speech would not only be broader than it currently exists, but significantly deeper as well.