With its new term starting this month, the Supreme Court will likely confront calls to upend constitutional law yet again. One very possible target is people’s everyday right to voice their political opinions, to speak up, even just to swear.
Consider what happened last month when a federal court of appeals decided a First Amendment challenge by JD Vance and others. The challenge invoked a less literal kind of speech, seeking to allow political parties to coordinate spending with party candidates. As expected, the challenge was rejected. But five judges argued that the case might come out differently if only the Supreme Court would start treating First Amendment cases the way it has recently begun treating Second Amendment cases. Specifically, Judge John Bush said that judges should discern the original understanding of free speech in “linguistical meaning” and “evidence of how Americans ordered their lives” in the 1790s.
If that sounds like a bizarre standard for which views you should and should not be allowed to express, that’s because it is. During the founding era, the right to free speech was understood much more narrowly than it is today. Something as simple as swearing or voicing unpopular political opinions might land you on the wrong side of the law. If rules from the 1790s were enforced today, citizens could be jailed for criticizing politicians, public figures could freely use defamation law to punish critics and schoolchildren would have few if any free speech rights.
But these judges are not alone. Recently, Judge Kevin Newsom of the Court of Appeals for the 11th Circuit said it would be “terrific” if courts started asking “what ‘the freedom of speech’ meant to the founders.” In NetChoice LLC v. Paxton, the case challenging Texas’ social media law that made it to the Supreme Court last term, the Court of Appeals for the Fifth Circuit even criticized the challengers of the law for relying on legal precedent rather than the “original public meaning” of the First Amendment.
Using history alone to define First Amendment freedoms is a very bad idea. This approach is sowing chaos in gun rights cases around the country. It has proved unworkable, unpredictable and easily manipulable by judges seeking to reach a preferred result — a cautionary tale, not something to be emulated elsewhere.
As you may recall, this most recent turn toward history started with New York State Rifle & Pistol Association, Inc. v. Bruen. In that ruling, Justice Clarence Thomas and five of his colleagues held that gun regulations are only constitutional if the government can prove that they are “part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” The court promised that this history-centric approach was “more legitimate, and more administrable” than asking judges to make difficult empirical judgments about a field in which they are not experts.
The problem, it turns out, is that judges are not historians and history is not always worthy of repeating. In Bruen’s wake, many lower court judges are wondering how much historical evidence is required before upholding gun regulations. What about conflicting historical evidence? And what lessons are we really supposed to learn from historical practices, such as laws disarming African Americans, Native Americans and religious minorities? Judges have answered these and questions like them with wild inconsistency, picking and choosing their own versions of history and arriving at different outcomes in similar cases.
For now, this damage has for now been confined to the Second Amendment. Over the past century, the court built our free speech law incrementally around broad democratic principles, establishing tests meant to protect our “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open.”
In practice, this has meant much more speech than the founders may have envisioned. In 1943, the court held that the government could not compel students to salute the flag because “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.” In 1964, the court held that a government official could not punish critics with libel lawsuits without proving those critics either intentionally lied or showed reckless disregard for the truth. In 1969, the court held that the government could not prohibit violent speech absent a showing that it was directed to inciting imminent lawless action and was likely to do so. In 1971, it held that the government could not ban vulgar or offensive speech.
This hands-off approach led to ever stronger First Amendment protections — some that even many ardent free speech advocates thought went too far. In 1976, the court held that commercial speech was protected from some kinds of government interference because a citizen’s interest in it may be “as keen, if not keener by far, than his interest in the day’s most urgent political debate.” The same year it held that spending money was a form of speech. And, in 2010 in Citizens United v. Federal Election Commission, the court held that limits on corporate and union campaign expenditures were unconstitutional under the First Amendment.
The result is that when it comes to speech, we have the strongest protections in the world. But if Bruen’s approach to constitutional decision-making is imported into the First Amendment — if, as Judge Amul Thapar of the Court of Appeals for the Sixth Circuit says, we should interpret the First Amendment in light of “King Charles II’s efforts to control” the British press in the 1600s — much of this case law might have to be thrown out.
Historically, the wrong kind of speech could land you in jail. Laws criminalizing blasphemy, government criticism, tepid sexual content and other speech viewed to be bad or harmful were commonplace at the country’s founding. In the 1770s, the Continental Congress outlawed theater because it was viewed as too culturally English. In the 1790s, Congress, controlled by one party, passed a law making it easier to imprison political opponents. Later, Southern states outlawed abolitionist speech. And throughout our history, the government prosecuted undesirable political minorities. This is not a history we should wish to resurrect.
To be sure, history and tradition are important parts of constitutional law. But they cannot be the only guide. They are too easily manipulated, provide too little guidance and risk becoming a suffocating straitjacket. If judges care about protecting free speech as we understand it today, they should resist the temptation to turn the clock back on the First Amendment.
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