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It is widely accepted that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that the punishment of low-value speech has never, since 1791, been thought to raise any constitutional concern.
This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech — was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, more libertarian conception of freedom of speech that courts employ today that it began to treat high- and low-value speech qualitatively differently. By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. To resolve this tension, the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern.
By challenging the accuracy of the historical claims that the Court has used to justify the doctrine of low-value speech, this Article forces a reexamination of the basis for granting or denying speech full First Amendment protection. In so doing, it challenges the Court’s recent claim that the only content-based regulations of speech that are generally permissible under the First Amendment are those that target speech that was historically unprotected. What the history of the doctrine of low-value speech makes clear is that history has never served as the primary basis for determining when First Amendment protections apply. Nor should it today, given the tremendous changes that have taken place over the past two centuries in how courts have understood what it means to guarantee freedom of speech.
*Assistant Professor of Law, The University of Chicago Law School. I am indebted to Aziz Huq, Barry Friedman, Omar Kutty, and Amy Cohen for providing feedback at multiple stages of this project. The Article has also profited immeasurably from the feedback of Daniel Abebe, Tabatha Abu El-Haj, William Baude, Zachary Clopton, David Cruz, Andrew Koppelman, Allison LaCroix, Melissa Murray, Fred Schauer, David Strauss, Geoffrey Stone, Alex Tsesis, Laura Weinrib, and the Chicago Bigelow Fellows. I am also grateful for the feedback of participants at the Chicago-Area Junior Faculty Workshop, the Drexel University School of Law Faculty Colloquium, the University of Chicago Law School Research Colloquium, and the University of Chicago Law School Faculty Workshop.