At Volokh Conspiracy, Will Baude: Should Free Speech Doctrine Use "Purely Historical Tests'? (responding to this post by David Han criticizing the Court's use of history in First Amendment law). Professor Baude concludes:
… [A] test that looks to what the First Amendment “has permitted” “from 1791 to the present,” sounds like an attempt to at least approximate the original meaning of the constitutional provision. That has all of the usual benefits (and drawbacks) of versions of originalism. If the First Amendment struck a balance between the power to govern and the right to speak, neither Congress, nor Congress in cooperation with federal judges, should be the one to decide that the balance protects too much (creating new unprotected categories) or too little (eliminating traditional categories).
But at a broader level, it seems to me unlikely that the use of historical categories is doing nothing to restrain the Court’s ability to make broad normative judgments. I highly doubt that if asked to consider the “value” and “costs” of the speech itself — divorced from the historical rules of free speech — that most of them would vote in favor of dog-fighting videos, hateful funeral protests, or violent video games in the hands of children. That suggests that cases like [United States v.] Stevens actually function to express a value judgment of their own — that judges should faithfully implement constitutional law rather than making it according to their will. It seems to me our constitutional doctrine needs more of that, not less.
Posted at 11:06 PM