On Traditionalism in Free Speech Law
51 Pages Posted: 1 May 2023
Date Written: April 22, 2023
Abstract
This Article contrasts constitutional traditionalism, and free speech traditionalism in particular, with what might be called constitutional and free speech purposivism. The overall preferability of purposivism to traditionalism in these contexts is explored and developed below. The comparison between traditionalism and purposivism involves, first, a critical exposition of the scholarly defense of traditionalist constitutional methodologies. This exposition is followed by a critique of the Supreme Court’s use of traditionalism in free speech contexts, and then by an elaboration of the relative deficiencies of traditionalism in some important public forum speech cases in particular. A brief Conclusion then follows.
Keywords: free speech, traditionalism, purposivism,
JEL Classification: K10, K30
Suggested Citation: Suggested Citation