Freedom of Speech: A Reference Guide to the United States Constitution

By Keith Werhan | Go to book overview

1

A History of Freedom of Speech in the
United States

Strong judicial protection of speech is a worthy tradition. It is also a comparatively
recent one. For much of American history,… many judges have been less protective
of free speech…., [and] at crucial times in American history the nation lias failed to
live up to its free speech and democratic ideals.

Michael Kent Curtis*


THE ENGLISH BACKGROUND

It is one of the great paradoxes of the American Revolution that the revolutionaries fought for independence in the name of liberties that they owed to their mother country. Americans of the Revolutionary Era cherished individual liberty as their special birthright as English subjects. They turned against England only when they became convinced that their liberty had become imperiled by the corruption of imperial power over them. American revolutionaries believed they were fighting for, not against, the true principles of British constitutionalism.

In order to understand the origins of the American commitment to freedom of speech, then, it is profitable to first take a quick look at England before the American Revolution.1 For virtually all of the seventeenth and eighteenth centuries, what the English called “freedom of speech” referred to the hard-won immunity from prosecution enjoyed by members of Parliament for the statements they made during floor debate. Freedom of speech, in this original English understanding, was thus a parliamentary privilege rather than an individual right. Open debate on the issues of the day was reserved for the people's representatives. The people themselves, as subjects of the realm, were expected to content themselves with listening—silently—to that debate. The United States Constitution incorporated this early

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Freedom of Speech: A Reference Guide to the United States Constitution
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Series Foreword xi
  • Foreword xv
  • Acknowledgments xix
  • 1: A History of Freedom of Speech in the United States 1
  • 2: What Makes Freedom of Speech Special? 27
  • 3: The Problem of Subversive Advocacy and the Central Meaning of Freedom of Speech 43
  • 4: The Central Organizing Principles of Free Speech Jurisprudence 69
  • 5: The Codified First Amendment 81
  • 6: The Procedural First Amendment 129
  • Afterword 149
  • Bibliographical Essay 151
  • Table of Cases 167
  • Index 173
  • About the Author 177
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