Originalist Arguments in Free Speech History

Contrary to what historians and legal scholars have often assumed, originalism has played an important role in American free speech history. During the 1950s, originalist interpretations of the First Amendment as prohibiting the crime of seditious libel became popular in legal argumentation, court rulings, and in popular culture more generally. The reason for the popularity of these arguments was the Red Scare. Liberal lawyers, judges, and scholars deployed originalist arguments in their battles against government anti-Communist measures. They argued that the original meaning and purpose of the First Amendment was the ban on punishment for criticism of the government, and that many of the government’s anti-Communist measures were effectively a form of liability for seditious libel and unconstitutional. These First Amendment arguments faded from the scene until new originalist arguments, this time calling for the restriction of free speech in libel cases, were taken up in the twenty-first century.