21 Pages Posted: 2 Aug 2017
Date Written: August 1, 2017
The “originalist” view of constitutional law is the view that in determining how constitutional language is applied, the judiciary functions best when adhering, without significant deviation, from the “original” meaning of the language. In the view of its adherents, originalism provides the only reasonable lens through which to interpret the Constitution’s text given other alternative methods rely too much on the personal views of judges or impermissibly blur the line too far between unelected judge and legislator. This appeal towards greater objectivity is powerful, and it largely explains why originalism continues to maintain such strong support across the ideological spectrum, including among multiple members on the United States Supreme Court (“the Court”).
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 of original intent for expansive and heavy-handed restraints on speech. Consequently, the modern era of free speech jurisprudence, beginning with Justice Oliver Wendell Holmes’ dissent in Abrams, appears as a “decisive break” with original intent because of the era’s expansive view of protection.
This Article attempts to draw on a common variable between the pre-modern and modern era periods of free speech jurisprudence: an evidence-based, procedural test of the effects of speech. If viewed through the lens of this test, first established by the Founders, the highly restrictive jurisprudence of the eighteenth and nineteenth centuries and the expanse of protections of the modern era become a progression compatible, and without significant deviation, from original constitutional intent. 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.
From the beginning, the Founders established substantive and procedural protections to ensure that disfavored speech actually caused non-speculative harm. Their commitment to an evidence test are demonstrated by the swift political blowback and legal amending during and after the passage of the Sedition Act. In what has been traditionally understood as expansions in free speech protections starting with Justice Holmes in more modern times is actually better understood as a consistent legal test applied to increasingly reliable information about the demonstrable effects of speech. In other words, the gradual increase in free speech protections has been dependent upon increases in evidence and science, rather than changes in free speech policy, and this is precisely what the Founders intended.
Part I examines the underlying theory of free speech in the founding era as well as documenting the struggle between the Founders over how such a theory was to be applied in American society. Part II traces the development of the evidence-based test during the Nineteenth Century “pre-modern” era. Part III, details the struggle over the modern application of the evidence-based test beginning with Justice Holmes’ dissent in Abrams. Part IV, reveals how the modern struggle ultimately led to a subversion of evidence-based reasoning for categorical and value-based analysis. Part V outlines what an evidence-based test in the 21st Century should look like, and how it may be satisfied.
Suggested Citation: Suggested Citation
Broker, Tyler, Free Speech Originalism (August 1, 2017). Available at SSRN: https://ssrn.com/abstract=3012248