The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America
As the number of issues perceived as having First Amendment implications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen – including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy – alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth- century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the belief that some forms of expression are incompatible with the aspirations of contemporary Americans for a civic-minded, decent, compassionate, and responsible society. One might attribute to the contributions of retrenchment advocates an implicit questioning of the special constitutional and cultural status of free speech in America. Such a reading invites parallels between the perspective of retrenchment commentators and a much older view of the status of speech. That view was embodied in an often anthologized attack on Justice Holmes’s dissent in Abrams v. United States made by John Wigmore in 1920. In his attack Wigmore distinguished between “Freedom of Speech” and “Freedom of Thuggery,” and maintained that a civilized society such as the United States, whose members enjoyed ample freedoms, had the capacity to distinguish those utterances that enhanced the body politic from those that corroded it. Wigmore suggested that American citizens had a moral, as well as a legal, right to repress speech that passed the boundaries of civilized interchange and accordingly threatened the fabric of the community. I am not primarily interested here in exploring the parallels between Wigmore’s perspective on free speech and that exhibited by current retrenchment advocates. Nor is my central concern with the saliency of various arguments advanced in retrenchment commentary. The recent proposed retrenchment of libertarian free speech theory has stimulated me to consider a broader issue: How did free speech, and the First Amendment, come to be treated as special, both constitutionally and culturally, in America?