The First Amendment dominates debate about freedom of speech in the United States. Yet it is not the only legal instrument that protects expressive freedom, the rights of the institutional press, or the democratic values that these rights facilitate. A rich body of local, state, and federal laws also does so, and does so in ways the First Amendment does not. This Article explores the history and present-day operation of this non–First Amendment body of free speech law. Doing so changes our understanding of both the past and the present of the American free speech tradition. It reveals that there was more legal protection for speech in the nineteenth century than scholars have assumed. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires, than what we commonly assume.
Recognizing as much is important not only as a descriptive matter but also as a doctrinal one. This is because in few other areas of constitutional law does the Supreme Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished. Missing from the Court’s understanding of freedom of speech is almost any recognition of the important nonconstitutional mechanisms that legislators have traditionally used to promote it. The result is a deeply inconsistent body of First Amendment law that relies on a false view of both our regulatory present and our regulatory past — and is therefore able to proclaim a commitment to laissez-faire principles that, in reality, it has never been able to sustain.
Introduction
The First Amendment dominates both popular and scholarly discussion of freedom of speech in the United States. If one takes a look at the tremendous amount of writing that has been produced to analyze, celebrate, or deplore how expressive freedom has been legally guaranteed in this country, one will quickly see that the vast majority of it focuses on the Free Speech and Press Clauses of the First Amendment and the judicial opinions that interpret and give those clauses force.
It is easy enough to understand why discussion of freedom of speech and press has tended to be so First Amendment–centric.1 The Free Speech Clause of the First Amendment has for decades now served as one of the most powerful mechanisms of individual rights protection in the Federal Constitution. It has been interpreted to apply to a dizzying variety of kinds of speech and expressive conduct. Today, the First Amendment protects not only explicitly political speech and journalism but also religious speech, artistic speech, scientific speech, most forms of popular entertainment, nonobscene pornography, commercial advertisements, and even nude dancing.2 The strength and size of the modern First Amendment have given it a powerful cultural status.3 They also make it easy to equate the free speech tradition in the United States with the First Amendment tradition.4 Like the sun, the First Amendment’s size and brightness tend to blot out all else.
It is nevertheless a mistake to presume that the only legal mechanism that protects freedom of speech in the United States is the First Amendment. This is because, as the Supreme Court has recognized, the federal courts do not possess a monopoly over the interpretation and enforcement of the rights to freedom of speech and press or the penumbral right of association. In its 1976 decision Hudgens v. NLRB,5 the Court made clear that “statutory or common law may in some situations extend protection or provide redress against [efforts] to abridge . . . free expression” even when the First Amendment does not do so.6 A few years later, in PruneYard Shopping Center v. Robins,7 the Court similarly concluded that state constitutions might provide “rights in expression” that are “more expansive than those conferred by the Federal Constitution.”8
The result is that speakers and listeners can, and sometimes do, receive more protection for their speech, press, and expressive association under state constitutional law, state and federal statutory law, and state common law than they do under the First Amendment. Although state constitutional law has proven to be less of an important source of free speech protection than some hoped or predicted after the PruneYard decision,9 courts in New Jersey, California, and a number of other states have for many decades now interpreted state constitutional guarantees of expressive freedom to confer rights that the First Amendment does not confer.10 More importantly, local, state, and federal legislators have over the course of the past two centuries enacted hundreds, perhaps even thousands, of laws that are intended to protect the same values and interests that the First Amendment protects. In some cases, legislators have also empowered regulatory agencies to do the same. To focus solely on the protection that the First Amendment provides is therefore to misunderstand how freedom of speech is actually understood and legally protected in the United States today.11
This Article attempts to correct this misunderstanding — or, at least, to begin the process of doing so — by exploring both the genealogical roots and the present-day operation of what it calls the non–First Amendment law of freedom of speech.12 The term refers to the many local, state, and federal laws that work to protect the same interests that the Free Speech and Press Clauses of the First Amendment protect. These laws do so not by simply enforcing the speech rights and speech-facilitating duties that the First Amendment requires, but by granting rights and imposing duties that the First Amendment does not require, or by intervening in the speech marketplace in other ways not mandated by the First Amendment cases.
In some cases, legislators have also empowered regulatory agencies to do the same. To focus solely on the protection that the First Amendment provides is therefore to misunderstand how freedom of speech is actually understood and legally protected in the United States today.11
This Article attempts to correct this misunderstanding — or, at least, to begin the process of doing so — by exploring both the genealogical roots and the present-day operation of what it calls the non–First Amendment law of freedom of speech.12 The term refers to the many local, state, and federal laws that work to protect the same interests that the Free Speech and Press Clauses of the First Amendment protect. These laws do so not by simply enforcing the speech rights and speech-facilitating duties that the First Amendment requires, but by granting rights and imposing duties that the First Amendment does not require, or by intervening in the speech marketplace in other ways not mandated by the First Amendment cases.
As I show in what follows, this body of non–First Amendment free speech law is extensive in its scope and significant in its effects. It also has deep roots in our regulatory traditions. In fact, the non–First Amendment free speech tradition is for all practical purposes older than the First Amendment tradition itself. In contrast to the First Amendment tradition, which began to emerge in its modern form only in the early decades of the twentieth century, legislatures acted to protect the interests that we today recognize the First Amendment as protecting beginning in the mid-eighteenth century, and continued to do so throughout the nineteenth and twentieth centuries in all sorts of ways.
This fact complicates the dominant narratives of the history of freedom of speech in the United States, which tend to depict the years prior to the early twentieth century as a period in which there was little legal protection for expressive freedom.13 It is absolutely true that eighteenth- and nineteenth-century courts tended to interpret constitutional free expression guarantees to grant speakers and listeners few rights against the government.14 But legislators proved much less insensitive to the need to protect expressive freedom, and the democratic freedoms that it enabled, against both government and private power than did the courts. Indeed, what we find during this period is significant and enduring legislative concern about the threat that the concentration of economic power produced by the increasing industrialization of the U.S. economy posed to the expressive freedom of the less powerful, as well as to the well-being of the institutional press.15 The result was the creation of a rich body of nonconstitutional free speech law. To write legislative efforts to promote freedom of speech and press out of the history of freedom of speech in the United States is therefore to miss much of the story.
Paying attention to the non–First Amendment law of freedom of speech not only changes our understanding of the history of the free speech tradition in the United States, however. It also complicates our understanding of its present. This is because what it shows us is that the modern free speech tradition is considerably more pluralist in its conception of the right, and more majoritarian in its operation, than we are accustomed to recognizing.
