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Freedom of speech12/27/2023 It has been interpreted to apply to a dizzying variety of kinds of speech and expressive conduct. The Free Speech Clause of the First Amendment has for decades now served as one of the most powerful mechanisms of individual rights protection in the Federal Constitution. References to freedom of speech should be understood to include the rights that might other-wise be understood, and historically were referred to, as freedom of press. Although good arguments have been made for why it is a mistake to equate freedom of speech with freedom of press, for simplicity’s sake, and in order to better reflect how the terms are used in contemporary constitutional discourse, in this Article I do just that. The result has been to make freedom of press and freedom of speech merely different ways of describing the same underlying bundle of rights. West, Awakening the Press Clause, 58 UCLA L. Although the text of the First Amendment distinguishes between the “freedom of speech” protected by the Free Speech Clause and the “freedom of press” protected by the Press Clause, in its First Amendment cases, the Court has generally refused to distinguish between the two. It is easy enough to understand why discussion of freedom of speech and press has tended to be so First Amendment–centric. If one takes a look at the tremendous amount of writing that has been produced to analyze, celebrate, or deplore how expressive freedom has been legally guaranteed in this country, one will quickly see that the vast majority of it focuses on the Free Speech and Press Clauses of the First Amendment and the judicial opinions that interpret and give those clauses force. The First Amendment dominates both popular and scholarly discussion of freedom of speech in the United States. The result is a deeply inconsistent body of First Amendment law that relies on a false view of both our regulatory present and our regulatory past - and is therefore able to proclaim a commitment to laissez-faire principles that, in reality, it has never been able to sustain. Missing from the Court’s understanding of freedom of speech is almost any recognition of the important nonconstitutional mechanisms that legislators have traditionally used to promote it. And yet, the Court’s view of the relevant regulatory history is impoverished. This is because in few other areas of constitutional law does the Supreme Court look more to history to guide its interpretation of the meaning of the right. Recognizing as much is important not only as a descriptive matter but also as a doctrinal one. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires, than what we commonly assume. It reveals that there was more legal protection for speech in the nineteenth century than scholars have assumed. Doing so changes our understanding of both the past and the present of the American free speech tradition. This Article explores the history and present-day operation of this non–First Amendment body of free speech law. A rich body of local, state, and federal laws also does so, and does so in ways the First Amendment does not. Yet it is not the only legal instrument that protects expressive freedom, the rights of the institutional press, or the democratic values that these rights facilitate. The First Amendment dominates debate about freedom of speech in the United States.
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