Rethinking the Myth of the Modern First Amendment

Abstract

This chapter for an edited volume, The Free Speech Century, seeks to dispel an an enduring origin myth about the emergence of free speech in America: namely, that the triumph of free speech in America was a straightforward reaction to the repressive patriotism of the First World War. On this generally accepted account, a handful of forward-thinking judges and academics spawned the contemporary commitment to the judicial protection of free speech in response to the convictions of antiwar agitators for condemning conscription and criticizing the war effort. In reality, the roots of free speech in the United States are more complicated, and they are both more radical and more conservative than the traditional liberal account allows. Yes, many interwar progressives believed expressive freedom was necessary to bolster and legitimate the exercise of state power. A handful even trusted the courts to demarcate the boundaries of protected expression. But most were harsh critics of the judiciary, and few were eager to invest courts with the authority to invalidate democratically enacted legislation. The shepherds of the modern First Amendment were a peculiar amalgamation of radical labor activists and conservative lawyers, not the New Dealers to whom we ordinarily ascribe the production of the postwar constitutional order.