At Dorf on Law, Eric Segall: "Free Speech, Free Press. Free Society?" Toward the end of the post, Professor Segall continues his theme of the tension between originalism and a broad view of free speech protections:
Here is something else that is true. You can either believe in strong and robust judicially created free speech doctrines, or you can believe in originalism, but you cannot believe in both, at least honestly and consistently. That reality raises interesting questions about the role of free speech in our country.
We can all agree that the founding fathers believed that political speech was very important. They may even have believed that artistic expression was very important. But in both circumstances, their major complaint was with prior restraints–requiring government permission before speaking or writing, not with after-the-fact punishments for that speech.
According to a detailed and persuasive article in the Yale Law Journal by Professor Jud Campbell, which I discussed previously on this Blog, the founding generation thought freedom of speech was a natural right. But they also thought that the right only extended as far as the public good required. And, here’s the catch. They also believed that the people, or legislatures, would balance free speech principles against the harms caused by speech.
…
Here are just a few issues where a sincere originalist would likely have to defer to state and federal laws. Most of the court’s defamation doctrine would have to be reversed. Students in schools would have virtually no first amendment rights (a position for which Justice Thomas has already advocated). The Court’s entire commercial speech doctrine would likely have to be reversed. As late as the 1970s, the Court did not protect commercial speech at all. And the idea that baking a cake or making a floral arrangement would be protected by courts as free speech in the face of non-discrimination laws is absurd under any reasonable definition of originalism.
The bottom line is that you can be an originalist or you can be a strong advocate for strong judicial protection of free speech, but you can’t be both. But that problem will not stop the Justices on the current Court from protecting speech in ways that would not be tolerated in most of the world’s democracies, for better or for worse.
Posted at 6:30 AM