The Growth of Free Speech Protection

Upon reading a relatively new article up at Areo Magazine, "How Did Free Speech Get Here?", by Max Diamond, I discovered an interesting perspective on the right to free speech. Apparently, the extremely strong free speech rights that we have today are a relatively new phenomenon in the legal world. In fact, just the other night I was writing a paper wherein I described Brandenburg v. Ohio as an adherence to old principles. I suppose that if I thought about it a little more, I would remember that the first few free speech cases at the turn of the twentieth century often went the wrong way (upheld restrictions of speech), with Holmes and Brandeis filing their fiery dissents. Still, the right to free speech in America is so absolute, and such an integral part of American culture, that it’s hard to think that it doesn’t have its roots deep in the common law tradition. But no, according to the article, our current American free speech absolutism “is alien to the Anglo-American tradition.” Of course, I knew that Great Britain did not have as strong protections for free speech as the United States, or for the press, etc., but I had assumed that this was just because Britain has succumbed more fully to the progressivism of the twentieth century. The fact that the Englishman John Stuart Mill, the paragon of liberal free speech rights, published On Liberty in 1859, doesn’t help the confusion. 

The interesting issue raised in this article was that “in America today no effectual political disagreement about free speech is possible.” That is, the current law of free speech, where speech can never be restricted based on its actual content, is so absolute that there cannot be any experimentation with other speech codes. So, if Mill and the U.S. Supreme Court are wrong about the virtues of free speech in all places and all times, we are not really allowed to discover this error. As Diamond put it, “No county or state can experiment with more restrictive policies for the apparent benefit of young people, to fight racism, or in defense of religious views. . . . The Court, apparently in service of a doctrine that promotes different viewpoints, has outlawed the political consequences of every [other] philosophy of free speech.” Now, if you happen to be a fan of the classical liberal free speech doctrine, like myself, then this seems like an okay thing. But the nature of this doctrine changes slightly when it takes on the sanction of law. Because what’s the point of free speech if we can’t come to different conclusions on it? This is something I had never considered before, the tension between the principle of free speech and the enforcement of it; the conflict between the libertarian’s desire for widespread liberal policies and radically decentralized sovereignty. 

The article goes on to discuss the current liberal and conservative attitudes towards free speech, given the state of the law on the topic. The conservatives must favor a liberal theory of free speech due to their inclination to support precedent (which I don’t know is really a priority of theirs, but I’ll come back to that in a second), and the liberals must have a more subversive attitude, supporting non-legal means of silencing views in pursuit of their progressive social ends. But the point that really captured me was almost a throw-away, the mention of the recent Janus decision, where conservatives used free speech to overturn precedent. This idea of “first amendment judicial activism” is something that I’ve been thinking about for a while now, although without such a clear label. For example, in the Masterpiece Cakeshop case, Thomas’ concurrence, which did not avoid the actual issue in the case, resolved it in favor of the baker on free expression grounds. I think that most justices of the U.S. Supreme Court are rather partisan, and so it’s no surprise to see the conservative justices making use of available doctrines to justify their ideologically conservative conclusions on various cases. The real question is, why do they have to? Make no mistake, the freedom of speech is one of, if not the most, potent right of Americans in the current age. And, as just discussed, this level of protection for expressive activities is unprecedented in the history of the common law. 

The Masterpiece Cakeshop case may prove instructive. The conflict in that case was a baker’s refusal to bake a wedding cake for a gay wedding on the basis of his religious beliefs. However, the case was argued and decided, at least by Thomas, as a free speech case, about the baker’s right to not express a particular sentiment (support for gay marriage) through the creation of a cake. This case was not decided on the basis of the baker’s freedom of religious expression because, ever since Scalia’s decision in Oregon v. Smith, constitutional protections for religious expression are virtually nonexistent. Thus, we see that as free speech protections have expanded, other protections have contracted, and perhaps the free speech protections are extending to fill the gaps left by the loss of the other protections. Perhaps that is why free speech is such a robust right in the United States is so powerful, because it represents the libertarian spirit of American compensating for the government encroachments on other fundamental rights (which our conservative Supreme Court has been allowing more and more of in recent decades).

It would be interesting to trace out the history of expanding free speech protections and to compare it with the development of other rights. For example, how much comparative progress did free speech make under the Warren Court, when a great many criminal rights were extended? Furthermore, it will be interesting to watch how the concept continues to develop in the future, and to see how far it will be stretched, for, as the freedom of speech, especially today, is almost the freedom of the mind, there is conceivably still room.