Document Type

Article

Publication Date

6-2024

Abstract

Courts should not apply originalism in freedom of expression cases. Originalists claim that originalism prevents judges from imposing their own views. It does not-not in theory and not in practice. Instead, as the treatment of hate speech bans suggests, it is not principles but outcomes that determine whether and which version of originalism is used. Moreover, a true originalist First Amendment would likely lead to impoverished free speech protections.

Part I provides background on original public meaning originalism, the iteration of originalism currently favored by scholars. It also explains how the theory falls short of its original promise of limiting judicial discretion and instead tends to entrench the privilege of historically powerful groups.

Part II explains why originalism as a theory particularly fails when applied to free speech cases: because the original meaning of the First Amendment is notoriously elusive, it enables judges to select an interpretation that yields their desired outcome. Moreover, what little we can confidently conclude about the original meaning suggests a cramped view of free speech protections at the Founding and at Reconstruction.

Part III demonstrates that free speech originalism in practice is an opportunistic affair. Actual judging provides at least two additional occasions to exercise discretion: deciding whether to use originalism and which version to use. Part III starts by exploring how sometimes the Supreme Court applies originalism to speech cases but more often it does not, especially in its deregulatory "free speech Lochnerism" decisions. Part III next demonstrates that different types of originalism applied to hate speech bans can yield different outcomes, further demonstrating how originalism provides cover for motivated results-results that too often favor the powerful at the expense of the marginalized.

Although there exists an extensive literature on both originalism and hate speech, this Article makes several novel contributions: surprisingly few scholars have considered free speech originalism and fewer still, if any, with an eye toward questions of power and privilege. The analysis of original meaning extends beyond the Founding to include Reconstruction, an era regularly overlooked. Finally, the originalist analysis of hate speech is the first of its kind.

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