What Makes Freedom of
[N]o really adequate or comprehensive theory of the first amendment has heen
enunciated, much less agreed upon.
Thomas I. Emerson'
Writing for the Supreme Court in 1937, Justice Benjamin N. Cardozo described freedom of speech as a charter member of the pantheon of fundamental rights without which “neither liberty nor justice would exist” (Palko v. Connecticut, 1937). Indeed, free speech occupied a special seat in that august group, Justice Cardozo explained, because “freedom of thought and speech … is the matrix, the indispensable condition, of nearly every other form of freedom.” Cardozo staked these claims to the privileged position of free speech with the confidence of a booster who could imagine no disagreement among his readers. His one-sentence justification for the special status of freedom of speech among constitutional rights was grounded on his reading of the political and legal history of the United States, which revealed, albeit with “rare aberrations,” a “pervasive recognition” among Americans of the necessity of free speech. But that inteipretation of American history, as we saw in the preceding chapter, is overly sanguine. Justice Cardozo's reliance on the popular tradition of free speech in America ignored the dishearteningly consistent legal tradition that subordinated freedom of speech to the interest of preserving public order and the comfort of the status quo.
In order to support a special status for freedom of speech in American constitutionalism, it is necessary to turn from history to theory. Is there something in the nature or function of free speech in the United States that justifies affording it special protection under the Constitution? Commentators who have considered that question generally have answered in the affirmative, but their justifications