Originalism in Modern Free Speech History

19 Pages Posted: 5 Apr 2025

See all articles by Samantha Barbas

Samantha Barbas

University of Iowa - College of Law

Date Written: April 01, 2025

Abstract

Contrary to what is often assumed, originalism has played an important role in our free speech history. During the 1950s, originalist interpretations of the First Amendment as prohibiting the crime of seditious libel became popular in legal argumentation, court rulings, and in popular culture more generally. The reason for the popularity of this argument was the Red Scare. Liberal lawyers, judges, and scholars deployed originalist arguments in their battles against government anticommunist measures. They argued that the original meaning of the First Amendment was the ban on punishment for criticism of the government, and that many of the government’s anticommunist measures were effectively a form of prosecution for seditious libel and unconstitutional.

This essay describes the popularization of First Amendment originalist arguments in the 1950s and early 60s, culminating in New York Times v. Sullivan. It explains how originalist First Amendment arguments came to be seen as an important liberal line of defense against government anticommunist efforts. Activists, scholars, lawyers, and justices on the left mobilized in a loosely affiliated sort of First Amendment “originalist movement” in an attempt to defeat the Red Scare. Ultimately, the essay suggests that originalism is a legal and social phenomenon that is intimately intertwined with culture and politics. Originalist ideas arise from multiple sources, including interest groups, intellectuals, journalists, lawyers, and ordinary citizens. The case study offers one example of how legal advocates and scholars in the mid-twentieth century deployed originalist arguments instrumentally, in response to the circumstances and perceived exigencies of their times.  

Suggested Citation

Barbas, Samantha, Originalism in Modern Free Speech History (April 01, 2025). U Iowa Legal Studies Research Paper No. 2025-13, Available at SSRN: https://ssrn.com/abstract=5205586 or http://dx.doi.org/10.2139/ssrn.5205586

Samantha Barbas (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States

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