The Emergence of Neutrality
abstract. This Article traces two interwoven jurisprudential genealogies. The first of these focuses on the emergence of neutrality in speech and press doctrine. Content and viewpoint neutrality are now the bedrock principles of modern First Amendment law. Yet the history of these concepts is large-ly untold and otherwise misunderstood. Scholars usually assume that expressive-freedom doctrine was mostly undeveloped before the early twentieth century and that neutrality was central to its modern rebirth. But this view distorts and sometimes even inverts historical perspectives. For most of American history, the governing paradigm of expressive freedom was one of limited toleration, focused on protecting speech within socially defined boundaries. The modern embrace of con-tent and viewpoint neutrality, it turns out, occurred only in the 1960s as the Supreme Court merged earlier strands of rights jurisprudence in novel ways. The emergence of neutrality, this Article shows, was more gradual, more contested, and more contingent than we now assume. Re-covering this history reveals the novelty of the modern neutrality paradigm and casts new light on the history of other First Amendment concepts, like prior restraints, low-value speech, and over-breadth.
To understand these developments, it is necessary to trace a second doctrinal genealogy that focuses on the concept of fundamental rights. Older views of expressive freedom were embedded in a different conceptual framework for thinking about rights. And once again, the role of neutrality within this tradition was radically different. Today, neutrality is ubiquitous in rights discourse, reflecting the prevailing view that rights are domains in which people can make their own moral choices. Thus defined, rights need not be absolute, but the government must at least maintain neutrality with respect to values. As this Article reveals, however, this neutrality-based view of rights emerged well into the twentieth century, reflecting a transmogrified synthesis of earlier ideas.
Recovering these older paradigms powerfully illustrates how deeply our current perspectives shape the way that we view the Constitution. Principles that appear to be inherent to the very idea of expressive freedom or the very idea of rights, it turns out, are refracted through a modern lens. Integrating history into rights jurisprudence thus poses a substantial and unresolved challenge, warranting further engagement by scholars and judges. On its own, history cannot dictate whether our approach to rights needs adjustment. But it can refocus attention on values and choices that modern doctrine too often ignores.
author. Associate Professor, University of Richmond School of Law. The author thanks Bill Araiza, Will Baude, Danielle Charette, Nathan Chapman, Saul Cornell, Rebecca Crootof, Marc DeGirolami, Richard Epstein, Jim Gibson, Jonathan Gienapp, Corinna Barrett Lain, Genevieve Lakier, Kurt Lash, Da Lin, Maeva Marcus, Michael McConnell, Bernie Meyler, Luke Norris, Jack Preis, Zach Price, Fred Schauer, Mark Storslee, Kevin Walsh, Lael Weinberger, Laura Weinrib, Ellis West, the editors of the Yale Law Journal, the participants in the American Political Science Association Conference, the Federalist Society Faculty Conference Young Legal Scholars Panel, the George Washington Faculty Workshop, the Richmond Faculty Workshop, the Southeastern Association of Law Schools (SEALS) Conference, the Stanford Constitutional Law Center Works-In-Progress Conference, the Stanford Faculty Workshop, and, especially, research assistants Heidi Keiser, Kevin Ng, and Danny Zemel.
Introduction
Neutrality is the lifeblood of modern speech and press doctrine. “[A]bove all else,” the Supreme Court has declared, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”1 This rule of “content neutrality” presumptively disallows the government from restricting speech based on what a speaker has communicated. For instance, although the government may punish a speaker for having violated a noise ordinance,2 it generally cannot restrict speech on account of what that person said.3 The content-neutrality principle thus treats speech and press freedoms as nondiscrimination rules, with content-based restrictions triggering strict scrutiny.4 There are a few exceptions,5 but their narrowness underscores the centrality of the content-neutrality requirement.6 So does the Court’s insistence that these exceptions have to be identified using a neutral tradition-based analysis, without weighing the costs and benefits of certain types of speech.7
In addition to requiring content neutrality, the First Amendment also disables the government from asserting interests that privilege certain viewpoints over others,8 thus barring speech-restrictive efforts to instill morality or otherwise shape the way that people think.9 For instance, even though interests like promoting civic virtue or reducing bigotry might seem compelling, the government cannot defend speech restrictions on those grounds. Doing so “grates on the First Amendment,” the Court has explained, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.”10 In this way, modern doctrine circumscribes not only the types of rules that the government can use when restricting speech but also the interests that it may pursue. For the most part, therefore, the government cannot restrict speech based on communicative harms—that is, harms arising from what someone has expressed.
Yet these neutrality principles are new. American law has always been protective of expression to some extent, but not by requiring content or viewpoint neutrality. Those concepts are twentieth-century innovations. From the Founding through the mid-twentieth century, the freedom of speech entailed a limited right of toleration, not neutrality.11 To be sure, speakers were still mostly free to decide what to say. Well-intentioned speech on matters of public concern was considered privileged, so the government had to tolerate a wide range of views. Moreover, the rule against prior restraints ensured that speech restrictions could only be imposed by a jury after publication, rather than having a public official determine ahead of time what could be published. But so long as these principles were followed, laws could maintain socially defined limits on public discourse and favor certain messages over others.12 Thus, many patently non-neutral rules were consistent with older notions of expressive freedom. Indeed, to the extent that neutrality entered the doctrinal picture, content-neutral restrictions of speech were sometimes thought to be more constitutionally suspect.13
Despite the central role of neutrality today, the current literature lacks any detailed treatment of its jurisprudential history.14 The conventional view is that constitutional protections for speech were absent until the 1930s and ’40s,15 and that the Supreme Court embraced content and viewpoint neutrality in its earliest First Amendment decisions.16 Neutrality and expressive freedom, the thinking goes, were reborn together. And this lesson is reinforced by the view that Carolene Products introduced a values-neutral vision of substantive rights.17 Indeed, with neutrality so firmly embedded in First Amendment doctrine, other approaches may seem unimaginable. If the First Amendment does anything, the thinking goes, surely it bans the government from targeting a speaker’s message.18
This Article challenges these engrained assumptions. Modern views of expressive freedom did not emerge ex nihilo in the twentieth century.19 It only appears that way because our interpretive assumptions about rights are so radically different from those of the past. Nor did the initial wave of speech-protective judicial decisions embrace content or viewpoint neutrality. To be sure, First Amendment law quickly became more protective of heterodox views, and some doctrines that resemble neutrality began to emerge almost immediately. But these developments did not prevent the government from imposing socially defined boundaries on expressive freedom or otherwise elevate neutrality as a central value. In fact, the expressive equality that the Supreme Court embraced was, in some important respects, counter to modern doctrine. Neutrality emerged in a more gradual, more contested, and more contingent manner than we now assume.20
In tracing this doctrinal genealogy, this Article also aims to illuminate the development of modern rights jurisprudence, including the role of neutrality. Up until the twentieth century, fundamental rights were bimodal, consisting of retained natural rights (grounded on social-contractarian principles) and fundamental positive rights (grounded largely on common law). The details of these concepts will be spelled out later.21 But two features bear emphasis here. First, although these rights were often listed in constitutions, they were not distinctively textual objects—that is, their force and meaning did not derive from their enumeration. Rather, jurists generally described rights as being grounded in unwritten fundamental law that predated the adoption of constitutions. Enumeration simply marked their existence and fundamentality. Second, jurists typically viewed fundamental rights as grounded in general law—that is, “rules that are not under the control of any single jurisdiction, but instead reflect principles or practices common to many different jurisdictions”22—thus fostering interpretive fluidity across state, federal, and even English decisions.
In the twentieth century, however, American jurists came to a very different understanding of rights. Reacting to the perceived flaws of Lochner-era doctrine, progressives relentlessly attacked both pillars of traditional rights jurisprudence. Natural rights were fictitious, they insisted, and common-law rights needed to be reshaped to promote social ends. As a result, constitutional rights became increasingly unmoored from social-contract theory and common law, especially once new appointments reshaped the Supreme Court from the 1930s onward. Rather than wholly abandon prior views, however, progressive jurists blended earlier strands of rights jurisprudence and began to treat constitutional rights as a species of positively enacted federal law, with federal judges assuming a special guardianship over their interpretation and enforcement.
This reconceptualization of fundamental rights did not necessarily point toward particular interpretive outcomes. But in a liberal era of secularism, individualism, and social fragmentation, what gradually emerged by the early 1970s was a notion of rights as spheres of personal liberty, free from socially prescribed ideas of morality.23 The very idea of a “right” thus came to embrace a sense of neutrality with respect to values.24 And with this transformation, it became second nature to see the First Amendment as guaranteeing a privileged sphere of individual autonomy—protected by a requirement of neutrality—rather than as securing a limited right of toleration. In other words, the development of neutrality in modern expressive-freedom law was interconnected with a broader shift in the very idea of constitutional rights.
The story begins in Part I with an older understanding of expressive freedom under the First Amendment and its state-level counterparts. From the Founding through the early twentieth century, the government could restrict expression to promote the public good, subject to the rule against prior restraints and the privilege of discussing matters of public concern in good faith.25 Neutrality was not required. In other words, Americans did not yet treat speech and press rights as nondiscrimination rules that made content-based restrictions presumptively unconstitutional and that forbade efforts to shape the way that people think. Indeed, even laissez-faire jurists recognized authority to restrict speech “tending to do harm to the public morals.”26 Instead, the dominant paradigm was one of toleration—premised on private ordering within socially defined boundaries.27
In some ways, this earlier law of expressive freedom recognized certain notions of equality—or, one might say, “neutrality.”28 From the very beginning, equality of citizenship rights was axiomatic, thus barring the government from arbitrarily favoring certain speakers over others.29 Nor was the government allowed to enforce uniformity of political and religious thought.30 Equality was also reflected in the rule prohibiting the government from punishing people for holding certain beliefs, no matter how dangerous those views might seem.31 In these ways, the law of expressive freedom embraced what might be described as forms of “neutrality.” My goal in contrasting earlier views with the modern notions of content and viewpoint neutrality, then, is simply to show how ideas of expressive freedom have changed, not to claim that all other potential variants of neutrality were missing, too.32 My argument is simply that older notions of equality did not entail or presage the modern principles of content and viewpoint neutrality.
As described in Part II, these longstanding views of expressive freedom eventually began to change alongside broader jurisprudential shifts, including the acceptance of a more functional approach to legal interpretation. Rather than view law as a self-contained system of historically derived rules, jurists began to construe legal traditions by assessing their social functions. At the outset, however, reinterpretations of speech and press freedoms did not deny legislatures the power to restrict expression based on content or viewpoint. Laws could still target communicative harms. In fact, statutory restrictions of certain messages were sometimes harder to challenge than speech-restrictive applications of neutral rules.
Part III then traces the doctrinal moves that eventually culminated in an embrace of neutrality. Although content and viewpoint neutrality are generally paired today,33 they did not emerge together. Moreover, neither principle initially arose in its modern form. For instance, judges in the 1940s articulated a nascent version of content neutrality as a way of confining the scope of First Amendment analysis—not as a presumptive rule against content-based speech restrictions. It was only in the late 1960s and early 1970s that the Supreme Court fully embraced content and viewpoint neutrality by shifting and merging earlier strands of doctrine. At that point, what had initially begun as a functional reinterpretation of traditional rules became something else entirely. Tied to a broader evolution in jurisprudence, the paradigm of expressive freedom shifted from toleration to neutrality.34
Part IV considers implications of this history. In an age when anxiety about expressive freedom is growing,35 retracing our steps is especially warranted. History alone may not tell us how to address contemporary problems. But studying our past can help us realize that modern perspectives are grounded in twentieth-century choices, not original or inexorable commands.
* * *
Before proceeding, it is worth making a few remarks about methodology. This Article focuses on internal legal perspectives. It aims to show how certain legal ideas changed, not why they changed. Nor does it aim to say anything about the real-world impact of legal developments. Such an account would no doubt be valuable, but exploring the external causes and effects of legal change is not the point of this Article. External developments are mentioned at various times to underscore an obvious point: the internal story was linked to a broader socio-political context. But my goal here is simply to recover internal legal perspectives and trace how they changed over time.36
Along similar lines, this Article examines what people said about the law, not what they privately thought about it.37 Of course, public statements do not necessarily capture what people really think. For instance, judges who disagree with existing precedent might try to move doctrine incrementally rather than reveal their views all at once. And perhaps what judges think is what really counts as “the law.”38 This Article does not take a side in that jurisprudential debate.39 But it does take a surface-level view of doctrine, focusing on legal rhetoric. Doing so has limits, but it should still be of value to a wide range of scholars and jurists.
So far, this framing may seem familiar, and perhaps even old fashioned.40 But this Article departs from traditional doctrinal scholarship by treating the internal perspective itself as being fluid, not fixed. Most doctrinal histories retell the “official story” in our terms—explicitly focusing on Supreme Court opinions and implicitly adopting modern attitudes about the nature of constitutional rights.41 By contrast, my goal is to analyze whatever materials political and legal elites previously considered authoritative and to analyze those materials using their interpretive assumptions, not ours.
For that reason, this Article evaluates different types of sources over time. To recover attitudes about expressive freedom in the nation’s first century, it examines a wide range of evidence, including the political and philosophical ideas that undergirded how Americans thought about rights. As the narrative moves into the twentieth century, it begins to concentrate on state and federal judicial decisions. And by the 1930s, the focus is almost entirely on U.S. Supreme Court opinions. That evidentiary shift is deliberate and tracks with changes in the way that American elites conventionally thought about the authority to interpret and enforce rights.
This methodology thus dovetails with my broader goal of showing that the histories of expressive freedom and fundamental rights are interconnected. The early twentieth century witnessed a revolution in views about the nature of rights—where they came from; the identity of their interpretive guardians; their means of enforcement; and their relationship to history, the common law, and morality. In order to understand the way that internal views of expressive freedom were shifting, then, we also need to recognize how the interpretive lens was changing. To borrow from Jonathan Gienapp, we cannot “keep[] the structure of [legal] conventions constant between present and past while merely filling in that structure with discreet component content [about particular doctrines].”42 And that is especially true with respect to rights.
Doctrinal genealogies of this sort can be especially valuable in opening our eyes to new ways of thinking about topics that we otherwise tend to view uncritically.43 Today, our understandings of expressive freedom and of rights are so infused with ideas of neutrality that those who dissent from the modern orthodoxy are often portrayed as challenging the very concept of free speech or the very concept of rights. Tracing doctrinal genealogies from an internal standpoint can at least free our minds from this type of liberal essentialism.44
At the same time, doctrinal genealogies have limits as methods of critique. For example, this Article does not explore the causes or effects of neutrality, and therefore it cannot address the ways that neutrality might perpetuate or alleviate longstanding social or political inequalities.45 Indeed, it does not aspire to be a critique of neutrality at all. The current liberal order may well be worth keeping. But this Article does challenge the notion that neutrality was baked into the core of the First Amendment and the very definition of rights from the beginning. American law did not, in fact, fully embrace these ideas until well into the twentieth century.
See, e.g., Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2371 (2018). Scholarship on content neutrality is voluminous. See, e.g., Leslie Kendrick, Content Discrimination Revisited, 98 Va. L. Rev. 231 (2012); Seth F. Kreimer, Good Enough for Government Work: Two Cheers for Content Neutrality, 16 U. Pa. J. Const. L. 1261 (2014); Genevieve Lakier, Reed v. Town of Gilbert, Arizona, and the Rise of the Anticlassificatory First Amendment, 2016 Sup. Ct. Rev. 233. For classic discussions, see John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1485 (1975); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189 (1983); and Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46 (1987). For critical treatments, see, for example, Ashutosh Bhagwat, In Defense of Content Regulation, 102 Iowa L. Rev. 1427 (2017); Barry P. McDonald, Speech and Distrust: Rethinking the Content Approach to Protecting the Freedom of Expression, 81 Notre Dame L. Rev. 1347 (2006); and Martin H. Redish, The Content Distinction in First Amendment Analysis, 34 Stan. L. Rev. 113 (1981).
See, e.g., Becerra, 138 S. Ct. at 2371-72 (emphasizing the narrowness of “unprotected” speech categories). Indeed, even when the government limits “unprotected” speech, the neutrality rule still disallows most content-based subclassifications. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 383-88 (1992).
See, e.g., Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 67 (1976); see also Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 444 (1996) (“[T]he Court almost always rigorously reviews and then invalidates regulations based on viewpoint.”).
For cases rejecting moral rationales for restricting speech, see Iancu v. Brunetti, 139 S. Ct. 2294, 2300 (2019); and United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 817-18 (2000). Compare Ginsberg v. New York, 390 U.S. 629, 639-40 (1968), which recognizes greater leeway to suppress the dissemination of sexually explicit materials to minors. For cases rejecting governmental justifications that turn on changing how people think, see cases cited infra note 10; and Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417, 2453 (1996). There is some debate over whether the latter principle is properly described in terms of “viewpoint neutrality.” Many understand viewpoint neutrality as barring governmental efforts to shape people’s thoughts. See, e.g., Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323, 328-32 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986); Geoffrey R. Stone, Anti-Pornography Legislation as Viewpoint-Discrimination, 9 Harv. J.L. & Pub. Pol’y 461, 461-62 (1986). Others distinguish the rule against viewpoint-based ends, see Volokh, supra, at 2427, from the ban on speech-restrictive means designed to change how people think, see id. at 2453-54. For now, it is enough to say that these principles belong to the same conceptual family. Cf. Susan H. Williams, Content Discrimination and the First Amendment, 139 U. Pa. L. Rev. 615, 621 (1991) (explaining that content neutrality is “best . . . understood not as a single concept, but as a family of concepts”).
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, Inc., 515 U.S. 557, 579 (1995). This quotation referred specifically to “noncommercial speech restriction[s],” id., but the Court has endorsed the same principle in commercial-speech cases, see Sorrell v. IMS Health Inc., 564 U.S. 552, 577 (2011).
In addition to the discussion in this paragraph, see infra notes 76-77, 207-210, 245, 248-252, 288-290, 339-342 and accompanying text. For a more detailed sketch of the difference between positions of orthodoxy, toleration, and neutrality, see Steven D. Smith, The Restoration of Tolerance, 78 Calif. L. Rev. 305, 308-12 (1990). For a parallel taxonomy using the terms assimilationism, pluralism, and individualism, see Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 Calif. L. Rev. 297, 299-305 (1988). The term “toleration” is not meant to suggest that the government was merely exercising forbearance and could extend or deny speech rights at pleasure.
To be sure, modern doctrine still imposes boundaries on speech. But these limits are of a different sort. For the most part, boundaries are now defined either in terms of noncommunicative harms, as recognized in United States v. O’Brien, 391 U.S. 367, 381-82 (1968), or in terms of predefined categories that preclude legislative or judicial assessments of communicative harms, see infra notes 371-374, 399-400 and accompanying text. That said, First Amendment analysis is patently non-neutral in certain domains, like doctrines relating to restrictions of student speech and public-employee speech. See, e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (“A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.” (quotations omitted)); Garcetti v. Ceballos, 547 U.S. 410, 426 (2006) (“We reject . . . the notion that the First Amendment shields from discipline the expressions employees make pursuant to their official duties.”). In contrast to the modern focus on neutrality, the older approach did not preclude legislative or judicial assessments of communicative harms. In other words, it did not reflect a neutrality paradigm.
Current accounts are quite brief. See, e.g., Marc O. DeGirolami, The Sickness unto Death of the First Amendment, 42 Harv. J.L. & Pub. Pol’y 751, 765-73 (2019); Marjorie Heins, Viewpoint Discrimination, 24 Hastings Const. L.Q. 99, 99-100 (1996); Paul B. Stephan III, The First Amendment and Content Discrimination, 68 Va. L. Rev. 203, 215-23 (1982). Other scholars have noted the absence of neutrality without tracing its development. See, e.g., John Fee, Speech Discrimination, 85 B.U. L. Rᴇᴠ. 1103, 1116 (2005); Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2192-95 (2015); Robert C. Post, Constitutional Domains: Democracy, Community, Management 101 (1995); Martin H. Redish, The Content Distinction in First Amendment Analysis, 34 Stan. L. Rev. 113, 121 (1981); David Yassky, Eras of the First Amendment, 91 Colum. L. Rev. 1699, 1707 (1991). Inaccuracies often appear in these accounts. See infra note 16 and accompanying text. For broader historical studies of expressive freedom, see, for example, Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960); Michael Kent Curtis, Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History (2000); Mark Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (1991); David M. Rabban, Free Speech in Its Forgotten Years, 1870-1920 (1997); and G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America, 95 Mich. L. Rev. 299 (1996).
The view that the Speech Clause was an empty vessel is widespread. See, e.g., Erwin Chemerinsky, Constitutional Law 1180 (6th ed. 2020) (“Because even for originalists there is little guidance from history or the framers’ intent as to the meaning of the First Amendment, the Supreme Court inescapably must make value choices as to [First Amendment doctrine].”); Frederick Schauer, Must Speech Be Special?, 78 Nw. U. L. Rev. 1284, 1298 (1983); David A. Strauss, Freedom of Speech and the Common-Law Constitution, in Eternally Vigilant: Free Speech in the Modern Era 33, 33-59 (Lee C. Bollinger & Geoffrey R. Stone eds., 2002); Geoffrey R. Stone, The Story of the Sedition Act of 1798: “The Reign of Witches,” in First Amendment Stories 13, 23 (Richard W. Garnett & Andrew Koppelman eds., 2012). And historians often posit that protections for expressive freedom were subsumed within police-powers jurisprudence and “did not have any independent force as a constitutional doctrine.” Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment, 86 Va. L. Rev. 1, 34 (2000); see, e.g., G. Edward White, Law in American History, Volume III: 1930-2000, at 692-93 (2019); see also David M. Rabban, The First Amendment in Its Forgotten Years, 90 Yale L.J. 514, 562-72 (1981) (describing scholarship taking this view). But see Lakier, supra note 14, at 2196 (“Speech about matters of public concern received greater constitutional protection than other kinds of speech . . . .”).
See, e.g., DeGirolami, supra note 14, at 771 (“The Barnette opinion represented a new commitment to absolute anti-orthodoxy—the view that the government could have no say at all in assessing the communal value of speech.”); Heins, supra note 14, at 99-100 (attributing viewpoint neutrality to West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639 (1943)); Lakier, supra note 14, at 2168 (“[D]iscriminat[ion] against speech on the basis of its content . . . was something that the new conception of freedom of speech otherwise disavowed [by 1942].”); Schiller, supra note 15, at 68 (mentioning “a presumption that content-based restrictions on speech were unconstitutional”); Stephan, supra note 14, at 215 (“Concern about discrimination in the context of free expression emerged as an outgrowth of the general extension of the [F]irst [A]mendment undertaken by the Hughes Court.”); Williams, supra note 9, at 622 (“The development of free speech doctrine is generally traced to the beginning of the twentieth century. The concern with content discrimination by government was a part of that doctrine from very near the beginning and is in no sense a new idea.”).
See, e.g., J.M. Balkin, The Footnote, 83 Nw. U. L. Rev. 275, 302 (1989) (“The faith of Carolene Products was that one could exclude values from the judicial role, and by casting them out substitute the task of purifying the democratic process.”). For an effort to historicize the treatment of neutrality in the equal-protection realm, see Barry Friedman, Neutral Principles: A Retrospective, 50 Vand. L. Rev. 503, 505-07 (1997).
A search for “if the First Amendment means anything” leads to such statements. See, e.g., Stanley v. Georgia, 394 U.S. 557, 565 (1969); Martin H. Redish, Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger, 70 Calif. L. Rev. 1159, 1165 (1982); cf. Jed Rubenfeld, The First Amendment’s Purpose, 53 Stan. L. Rev. 792, 824 (2000) (taking as given that the First Amendment demands viewpoint neutrality).
Although this Article does not employ Laura Weinrib’s focus on nonjudicial sources, it reinforces her critique of how present-day views of expressive freedom and portrayals of its history usually approach the topic in an essentialist way, treating expressive freedom as having a certain form because that just is the meaning of the concept. The modern notion that expressive freedom entails neutrality, Weinrib powerfully shows, was constructed by twentieth-century actors. See Laura Weinrib, The Taming of Free Speech: America’s Civil Liberties Compromise 8-12 (2016); Laura M. Weinrib, The Sex Side of Civil Liberties: United States v. Dennett and the Changing Face of Free Speech, 30 Law & Hist. Rev. 325, 335-42 (2012); see also Risa L. Goluboff, The Lost Promise of Civil Rights 5 (2007) (“[T]he world of civil rights was conceptually, doctrinally, and constitutionally up for grabs.”). For other work in this vein, see, for example, Sam Lebovic, Free Speech and Unfree News: The Paradox of Press Freedom in America (2016); and John Fabian Witt, Patriots and Cosmopolitans: Hidden Histories of American Law (2007).
See, e.g., Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution 205 (1996) (“[B]ecause we are a liberal society committed to individual moral responsibility, . . . any censorship on grounds of content is inconsistent with that commitment.”); Suzanna Sherry, Selective Judicial Activism: Defending Carolene Products, 14 Geo. J.L. & Pub. Pol’y 559, 570 (2016) (“Personal rights are about preventing political majorities from imposing their values on individuals who may not share those values.”). For an introduction to debates about neutrality in liberal theory, see generally Perfectionism and Neutrality: Essays in Liberal Theory (Steven Wall & George Klosko eds., 2003).
See Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 287 (2017). For ease of exposition, this Article often refers to “the government.” Even before “incorporation,” jurists viewed federal speech and press rights as parallel to those secured at the state level. See infra notes 118-121 and accompanying text.
Christopher G. Tiedeman, A Treatise on the Limitations of Police Power in the United States 192 (Da Capo Press 1971) (1886). For Christopher G. Tiedeman’s association with laissez-faire constitutionalism, see Stephen A. Siegel, Historism in Late Nineteenth-Century Constitutional Thought, 1990 Wis. L. Rev. 1431, 1436 & n.15. As Stephen A. Siegel observes, “Laissez-faire constitutionalism was far more supportive of the regulatory state than current libertarian doctrine,” though Tiedeman “was far closer to a libertarian position.” Id. at 1436 n.15.
My reason for taking this approach is expositional. To see our constitutional past on its own terms, we have to begin by appreciating its foreignness. But while this Article highlights non-neutral facets of earlier law, my aim is not to claim that it was entirely non-neutral in every sense of “neutral.”
This shift was not instant, and older ways of thinking lingered for several decades. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 399-403 (1992) (White, J., concurring). Moreover, debates have continued over how to define and apply these neutrality principles. For an insightful discussion of how speech doctrine has shifted toward more formalist conceptions of neutrality, see Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117, 2119 (2018).
See DeGirolami, supra note 14, at 782-801 (surveying modern anxieties about free speech). Scholarly critiques often invoke the specter of “Lochnerism.” See, e.g., Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition, 69 Stan. L. Rev. 1389, 1392-93 (2017); Howard M. Wasserman, Bartnicki as Lochner: Some Thoughts on First Amendment Lochnerism, 33 N. Ky. L. Rev. 421, 421-24 (2006). Critiques of this sort are old. See Jeremy K. Kessler, The Early Years of First Amendment Lochnerism, 116 Colum. L. Rev. 1915, 1918 (2016). For a discussion of their changing valence, see Genevieve Lakier, The First Amendment’s Real Lochner Problem, 87 U. Chi. L. Rev. 1241 (2020).
This Article is modeled on the Cambridge School of intellectual history—focusing on ideas themselves, not motives. See, e.g., Quentin Skinner, The Principles and Practice of Opposition: The Case of Bolingbroke Versus Walpole, in Historical Perspectives: Studies in English Thought and Society 93 (Neil McKendrick ed., 1974). For further discussion of this method and its value, see Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era 16-18 (2018); and 1 Quentin Skinner, Visions of Politics: Regarding Method 96-99, 124-27 (2002). This Article differs from most “Cambridge School” scholarship by focusing on legal rhetoric, reflecting internal views of doctrine. But this approach still embraces—indeed, emphasizes—the importance of context and is thus a form of “holistic” intellectual history. See Jonathan Gienapp, Historicism and Holism: Failures of Originalist Translation, 84 Fordham L. Rev. 935, 941-44 (2015) (discussing methods of intellectual history).
This distinction between legal discourse and private understandings is not the same as the difference between internal and external points of view. For instance, jurists might share an internal understanding of the law yet adopt different rhetorical strategies for describing the law—perhaps for external reasons or perhaps based on conflicting views about the proper relationship between legal rhetoric and the law.
On the relationship between law and discursive practices, see, for example, William Baude & Stephen E. Sachs, The Official Story of the Law (Mar. 24, 2021) (unpublished manuscript) (on file with author); Richard Primus, Is Theocracy Our Politics?, 116 Colum. L. Rev. Sidebar 44, 54-60 (2016); and Mikołaj Barczentewicz, The Illuminati Problem and Rules of Recognition, 38 Oxford J. Legal Stud. 500, 504 (2018).
See Cynthia Nicoletti, Writing the Social History of Legal Doctrine, 64 Buff. L. Rev. 121, 121 (2016) (“A more than passing concern with doctrine might well serve to mark someone as old-fashioned these days . . . .”). It is worth noting that Nicoletti emphasizes the continuing relevance of doctrinal history. See id. at 139.
Gienapp, supra note 36, at 941. Regardless of whether one describes this inquiry as a “highly limited version of the historical inquiry,” William Baude & Steven E. Sachs, Originalism and the Law of the Past, 37 Law & Hist. Rev. 809, 813 (2019), a principal claim of this Article is that recovering the law of the past requires a deep sensitivity to changes in the internal perspective.
Of course, a genealogical account of this sort is unnecessary to show that “free speech” and “rights” are not essentialist concepts as a linguistic matter. For that lesson, one need only glance outside the United States, where these terms often take on very different meanings. But that type of inquiry is not likely to change the essentialist views of positivists who view liberal neutrality as inherent to American speech rights.