What an excellent piece - well researched and historically insightful.
"Previously, this had not been accepted, as the damage to reputation — regardless of truth — was held to be the real crime." - Fascinating how recently the concept of truth was legally secondary to reputation. I fear this corrosive hierarchy is commonly held here in Britain, where people would rather mask evident truths with politically acceptable facades.
This article would be stronger if it engaged with counterexamples to a much greater degree.
In particular, this absence is notable by the examples chosen, which are by and large examples from the nadir of American free speech jurisprudence in the Wilson and immediate post-Wilson era, which American conservatives have raged about for over a century.
And again, in the suggestion that restriction on group libel—a legal innovation of the mid-20th century which was killed not solely by liberals or activist judges, but finally and definitely only in 1992 by Antonin Scalia’s famous ode to the “Marquis de Queensbury rules,” which might also be seen as an application of the very American legal principle of substantive due process. This is an example of the court functioning as it should: striking down legal loopholes which undermine citizens’ basic rights.
The author furthermore doesn’t seem to understand how federalism works, or how the relationship between the states and the federal government (and hence the application of the Bill of Rights to the states) was altered by the 14th Amendment.
The result is that this article comes closer to a mere list of exceptions to free speech (of which there were and are many) and cases where the United States failed to live up to the principles it nominally claimed.
And that’s a pity, because it is true that—unlike most other negative rights, which were reduced—free speech saw its scope significantly expanded during the 20th century. That is an important and oft-forgotten fact of American history.
But to mistake exceptions and failures for the lack of an underlying trend is an error in analysis which better research would have prevented.
I like the insight into how America and Britain had very similar free speech cultures until relatively recently. It is important to highlight that the 1st amendment did not initially (and does not necessarily now) protect against tortious liability. Would be good to use this against Americans in (friendly of course) debates! Britons should be proud of our own free speech record among others (even if looking to other nations is still alright to avoid navel-gazing). Our nation is not lost yet!
I have some criticisms. This comes across as too revisionist in 'the other direction', perhaps motivated to 'own the Americans'? I'm not sure it should be taken for granted that a nation that rebelled against Britain should 100% auto-copy every aspect of English common law which informs their 'rebellious' higher constitutional law. Other constitutional provisions were informed by a clear divergence from previous English thought such as with patents (borrowing overall concepts but usually making them 'freer'). I don't think 'Madison's ideas of what the 1st amendment means' get defeated just because states or previous common law disagreed with him in their laws: separate from questions of whether individual states had this incorporated on them or not. The 1799 report and footnote 20 seems to have quite a bit of deference to the idea of the Constitution being hallowed and so tried to justify restrictions on speech by essentially rules / word lawyering. I don't think that would need to be done if people didn't feel "in general no restraints after publication" could have been a reasonable interpretation of 'free speech' in their new republic. In short, I think what Madison et al thought about the Constitution is *pretty important in deciding its meaning*! Its also premature to say the Alien and Sedition Acts etc "were never deemed illegal" since judicial review on constitutionality was only confirmed in Marbury in 1803 after said Act expired (save for the now relevant Alien Enemies Act!).
At least it was enlightening to call out the moves to 'freedom of speech' by SCOTUS as judicial activism. Good to point out that Sullivan looked like a 'public policy decision' (an oft-repeated phrase by English judges to justify a ruling on political grounds) to cover for false reporting! Still, specific cases aside, I do support the overall trend but it would have been better if Congress did that to avoid the un-constitutionality of judicial activism. I can't help but feel that its unfair for some scope to change rulings, but only if there's clear evidence previous judges were being unreasonable in their interpretations of a higher law.
But was this simply a matter of a few judges inventing new laws?
My understanding is that "free speech" was a popular catchphrase of radical college students in the 1960s, and their hostility to censorship was understandable, as efforts to spread Communism or opposing the Vietnam War could lead to prosecutions.
What an excellent piece - well researched and historically insightful.
"Previously, this had not been accepted, as the damage to reputation — regardless of truth — was held to be the real crime." - Fascinating how recently the concept of truth was legally secondary to reputation. I fear this corrosive hierarchy is commonly held here in Britain, where people would rather mask evident truths with politically acceptable facades.
A brilliant article. I dream of the day when one is openly able to shout on a megaphone why Fry must fall in the street outside the Garrick Club.
Hell of a piece, thank you
Excellent and fascinating article. Lots to think about here and references to dig into. There goes the rest of my weekend...
This article would be stronger if it engaged with counterexamples to a much greater degree.
In particular, this absence is notable by the examples chosen, which are by and large examples from the nadir of American free speech jurisprudence in the Wilson and immediate post-Wilson era, which American conservatives have raged about for over a century.
And again, in the suggestion that restriction on group libel—a legal innovation of the mid-20th century which was killed not solely by liberals or activist judges, but finally and definitely only in 1992 by Antonin Scalia’s famous ode to the “Marquis de Queensbury rules,” which might also be seen as an application of the very American legal principle of substantive due process. This is an example of the court functioning as it should: striking down legal loopholes which undermine citizens’ basic rights.
The author furthermore doesn’t seem to understand how federalism works, or how the relationship between the states and the federal government (and hence the application of the Bill of Rights to the states) was altered by the 14th Amendment.
The result is that this article comes closer to a mere list of exceptions to free speech (of which there were and are many) and cases where the United States failed to live up to the principles it nominally claimed.
And that’s a pity, because it is true that—unlike most other negative rights, which were reduced—free speech saw its scope significantly expanded during the 20th century. That is an important and oft-forgotten fact of American history.
But to mistake exceptions and failures for the lack of an underlying trend is an error in analysis which better research would have prevented.
I like the insight into how America and Britain had very similar free speech cultures until relatively recently. It is important to highlight that the 1st amendment did not initially (and does not necessarily now) protect against tortious liability. Would be good to use this against Americans in (friendly of course) debates! Britons should be proud of our own free speech record among others (even if looking to other nations is still alright to avoid navel-gazing). Our nation is not lost yet!
I have some criticisms. This comes across as too revisionist in 'the other direction', perhaps motivated to 'own the Americans'? I'm not sure it should be taken for granted that a nation that rebelled against Britain should 100% auto-copy every aspect of English common law which informs their 'rebellious' higher constitutional law. Other constitutional provisions were informed by a clear divergence from previous English thought such as with patents (borrowing overall concepts but usually making them 'freer'). I don't think 'Madison's ideas of what the 1st amendment means' get defeated just because states or previous common law disagreed with him in their laws: separate from questions of whether individual states had this incorporated on them or not. The 1799 report and footnote 20 seems to have quite a bit of deference to the idea of the Constitution being hallowed and so tried to justify restrictions on speech by essentially rules / word lawyering. I don't think that would need to be done if people didn't feel "in general no restraints after publication" could have been a reasonable interpretation of 'free speech' in their new republic. In short, I think what Madison et al thought about the Constitution is *pretty important in deciding its meaning*! Its also premature to say the Alien and Sedition Acts etc "were never deemed illegal" since judicial review on constitutionality was only confirmed in Marbury in 1803 after said Act expired (save for the now relevant Alien Enemies Act!).
At least it was enlightening to call out the moves to 'freedom of speech' by SCOTUS as judicial activism. Good to point out that Sullivan looked like a 'public policy decision' (an oft-repeated phrase by English judges to justify a ruling on political grounds) to cover for false reporting! Still, specific cases aside, I do support the overall trend but it would have been better if Congress did that to avoid the un-constitutionality of judicial activism. I can't help but feel that its unfair for some scope to change rulings, but only if there's clear evidence previous judges were being unreasonable in their interpretations of a higher law.
But was this simply a matter of a few judges inventing new laws?
My understanding is that "free speech" was a popular catchphrase of radical college students in the 1960s, and their hostility to censorship was understandable, as efforts to spread Communism or opposing the Vietnam War could lead to prosecutions.
Matters little euro Americans are still being replaced.