The Creation of the First Amendment Right to Free Expression: From the Eighteenth Century to the Mid-Twentieth Century

Abstract

Reviewing the entire development of the First Amendment from its origin to the early 1970s, the striking fact is that almost everything about constitutional protections for free expression and association was fundamentally changed in this period. All of the foundational changes took place in the relatively brief period from the 1930s to the early 1970s. Along with crucial fluctuations in the specific rules relating to speech and press rights, the Court moved from an attitude that was extremely accepting of governmental repression to a model of overall tolerance for expression and personal association with others.

The principle of government neutrality regarding expression did not blow in from the desert. Rather, it encapsulates an attitude about the relationship between citizen and state that grew out of the specific historical events covered in this essay. Not uncommonly, the Court’s endorsement of First Amendment rights arose in tandem with, or was preceded by, other constitutional developments.

Keywords: constitutional law, U.S. Constitution, first amendment, freedom of expression, free speech, legal history