Dissent, Free Speech, and the Continuing Search for the “Central Meaning” of the First Amendment

Since the Warren Court’s expansive construction of the Free Speech Clause of the First Amendment, there has been no shortage of legal scholarship aimed at justifying the remarkably broad protections afforded the freedom of speech under landmark cases such as Brandenburg v. Ohio, New York Times Co. v. Sullivan, and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. At the same time, in recent years, a growing chorus of free speech skeptics have made their voices heard.5 These legal scholars have questioned why a commitment to freedom of expression should displace other (constitutional) values such as equality, community, or citizenship. This spirited challenge to the Warren Court’s free speech orthodoxy has given rise to a kind of free speech counter-Reformation. Defenders of the free speech tradition have joined the fray, challenging those who question the value of racist, sexist, or homophobic expression.