Originalist Framing of Free Speech Doctrine

The Supreme Court has increasingly signaled the importance of history and tradition to constitutional interpretation. Reliance on original meaning and understanding appears in a broad array of cases that stretch the gamut from abortion to gun rights. Often those references, however, sound conclusory rather than the careful articulation and contextualization of constitutional norms. The newest trend on the Court has led some scholars to argue that the meaning of constitutional provisions, phrases, and clauses is tied almost exclusively to views of nation’s founders or to the linguistic understandings of the American people at fixed events of the nation’s constitutional development, such as at the points of ratification of the Bill of Rights or Reconstruction Amendments. This Essay demonstrates that, at least in the area of free speech law, the Supreme Court’s recent efforts to connect doctrine to original meaning are on shaky historical ground. Indeed, a purely originalist interpretation of the First Amendment would undermine core doctrines of free expression.