FREEDOM S P E E C H Of
in American Constitutionalism Today By Howard Schweber
Free speech is as American as, well, apple pie. Grounded in the First Amendment to the U.S. Constitution, freedom of speech has become much more than a legal principle, it has become an American cultural touchstone. Ask an American primary school child to identify an important right and the odds are 10 to 1 she will answer “freedom of speech.” And, like every other American cultural touchstone, free speech is front and center in the ever more bitter culture wars that define current American political identity.
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Political conservatives rail against “cancel culture” and insist that free speech goes with unregulated markets, gun rights, and religious exemptions from legal obligations as part of the core of American exceptionalism (the idea that the United States is an historically unique polity that has everything to teach to and nothing to learn from others). They point to progressive efforts to introduce raceconscious curricula in schools, prevent the invitation of speakers to college campuses based on their views, impose vaccination requirements and marginalize purveyors of misinformation as evidence of hostility to freedom of speech. Political progressives, conversely, point to efforts to ban the teaching of uncomfortable subjects such as critical race theory, the removal of books from libraries, and the laws in numerous states that impose penalties on individuals and businesses who participate in politically motivated boycotts (specifically of Israel) as evidence that is it conservatives who seek to silence dissenting voices.
One thing that drives this dynamic is the sense that whoever can invoke “freedom of speech” has the ideological high ground in American politics; perhaps for that reason arguments over the legal status of religious practices, corporate influence and politics, and political gerrymandering are all presented as free speech issues. For a topic that is so central to Americans’ political self-conception, it is remarkable how little freedom of speech is studied or understood by most Americans, including elected representatives, media pundits, and even university professors. There are three key things that most Americans do not understand about our constitutional tradition of free speech protection: 1. Freedom of Speech Is Actually Rather New First, freedom of speech in its robust, relatively (compared to other countries) libertarian form is a recent invention. Specifically, prior to 1969 the U.S. Supreme Court saw no problem with putting people in prison for “mere advocacy” of a future communist takeover of the United States. In 1969 the liberal Warren Court for the first time declared that such advocacy was protected political expression. In later cases over the following decade the same Court discovered First Amendment protections for other forms of speech, including libel directed at public figures, artistic expression, the use of indecent language in public, expressive conduct of various kinds (as in the boycotts mentioned earlier), and a host of other expansive applications of the concept.
