abstract . This Article traces two interwoven jurisprudential genealogies. The first of these focuses on the emergence of neutrality in speech and press doctrine. Content and viewpoint neutrality are now the bedrock principles of modern First Amendment law. Yet the history of these concepts is large-ly untold and otherwise misunderstood. Scholars usually assume that expressive-freedom doctrine was mostly undeveloped before the early twentieth century and that neutrality was central to its modern rebirth. But this view distorts and sometimes even inverts historical perspectives. For most of American history, the governing paradigm of expressive freedom was one of limited toleration, focused on protecting speech within socially defined boundaries. The modern embrace of con-tent and viewpoint neutrality, it turns out, occurred only in the 1960s as the Supreme Court merged earlier strands of rights jurisprudence in novel ways. The emergence of neutrality, this Article shows, was more gradual, more contested, and more contingent than we now assume. Re-covering this history reveals the novelty of the modern neutrality paradigm and casts new light on the history of other First Amendment concepts, like prior restraints, low-value speech, and over-breadth.
To understand these developments, it is necessary to trace a second doctrinal genealogy that focuses on the concept of fundamental rights. Older views of expressive freedom were embedded in a different conceptual framework for thinking about rights. And once again, the role of neutrality within this tradition was radically different. Today, neutrality is ubiquitous in rights discourse, reflecting the prevailing view that rights are domains in which people can make their own moral choices. Thus defined, rights need not be absolute, but the government must at least maintain neutrality with respect to values. As this Article reveals, however, this neutrality-based view of rights emerged well into the twentieth century, reflecting a transmogrified synthesis of earlier ideas.
Recovering these older paradigms powerfully illustrates how deeply our current perspectives shape the way that we view the Constitution. Principles that appear to be inherent to the very idea of expressive freedom or the very idea of rights, it turns out, are refracted through a modern lens. Integrating history into rights jurisprudence thus poses a substantial and unresolved challenge, warranting further engagement by scholars and judges. On its own, history cannot dictate whether our approach to rights needs adjustment. But it can refocus attention on values and choices that modern doctrine too often ignores.
author. Associate Professor, University of Richmond School of Law. The author thanks Bill Araiza, Will Baude, Danielle Charette, Nathan Chapman, Saul Cornell, Rebecca Crootof, Marc DeGirolami, Richard Epstein, Jim Gibson, Jonathan Gienapp, Corinna Barrett Lain, Genevieve Lakier, Kurt Lash, Da Lin, Maeva Marcus, Michael McConnell, Bernie Meyler, Luke Norris, Jack Preis, Zach Price, Fred Schauer, Mark Storslee, Kevin Walsh, Lael Weinberger, Laura Weinrib, Ellis West, the editors of the Yale Law Journal, the participants in the American Political Science Association Conference, the Federalist Society Faculty Conference Young Legal Scholars Panel, the George Washington Faculty Workshop, the Richmond Faculty Workshop, the Southeastern Association of Law Schools (SEALS) Conference, the Stanford Constitutional Law Center Works-In-Progress Conference, the Stanford Faculty Workshop, and, especially, research assistants Heidi Keiser, Kevin Ng, and Danny Zemel.
Neutrality is the lifeblood of modern speech and press doctrine. “[A]bove all else,” the Supreme Court has declared, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” 1 This rule of “content neutrality” presumptively disallows the government from restricting speech based on what a speaker has communicated. For instance, although the government may punish a speaker for having violated a noise ordinance, 2 it generally cannot restrict speech on account of what that person said. 3 The content-neutrality principle thus treats speech and press freedoms as nondiscrimination rules, with content-based restrictions triggering strict scrutiny. 4 There are a few exceptions, 5 but their narrowness underscores the centrality of the content-neutrality requirement. 6 So does the Court’s insistence that these exceptions have to be identified using a neutral tradition-based analysis, without weighing the costs and benefits of certain types of speech. 7
In addition to requiring content neutrality, t he First Amendment also disables the government from asserting interests that privilege certain viewpoints over others, 8 thus barring speech-restrictive efforts to instill morality or otherwise shape the way that people think. 9 For instance, even though interests like promoting civic virtue or reducing bigotry might seem compelling, the government cannot defend speech restrictions on those grounds. Doing so “grates on the First Amendment,” the Court has explained, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.” 10 In this way, modern doctrine circumscribes not only the types of rules that the government can use when restricting speech but also the interests that it may pursue. For the most part, therefore, the government cannot restrict speech based on communicative harms—that is, harms arising from what someone has expressed.
Yet these neutrality principles are new. American law has always been protective of expression to some extent, but not by requiring content or viewpoint neutrality. Those concepts are twentieth-century innovations. From the Founding through the mid-twentieth century, the freedom of speech entailed a limited right of toleration, not neutrality. 11 To be sure, speakers were still mostly free to decide what to say. Well-intentioned speech on matters of public concern was considered privileged, so the government had to tolerate a wide range of views. Moreover, the rule against prior restraints ensured that speech restrictions could only be imposed by a jury after publication, rather than having a public official determine ahead of time what could be published. But so long as these principles were followed, laws could maintain socially defined limits on public discourse and favor certain messages over others. 12 Thus, many patently non-neutral rules were consistent with older notions of expressive freedom. Indeed, to the extent that neutrality entered the doctrinal picture, content-neutral restrictions of speech were sometimes thought to be more constitutionally suspect. 13
Despite the central role of neutrality today, the current literature lacks any detailed treatment of its jurisprudential history. 14 The conventional view is that constitutional protections for speech were absent until the 1930s and ’40s, 15 and that the Supreme Court embraced content and viewpoint neutrality in its earliest First Amendment decisions. 16 Neutrality and expressive freedom, the thinking goes, were reborn together. And this lesson is reinforced by the view that Carolene Products introduced a values-neutral vision of substantive rights.17 Indeed, with neutrality so firmly embedded in First Amendment doctrine, other approaches may seem unimaginable. If the First Amendment does anything, the thinking goes, surely it bans the government from targeting a speaker’s message. 18
This Article challenges these engrained assumptions. Modern views of expressive freedom did not emerge ex nihilo in the twentieth century. 19 It only appears that way because our interpretive assumptions about rights are so radically different from those of the past. Nor did the initial wave of speech-protective judicial decisions embrace content or viewpoint neutrality. To be sure, First Amendment law quickly became more protective of heterodox views, and some doctrines that resemble neutrality began to emerge almost immediately. But these developments did not prevent the government from imposing socially defined boundaries on expressive freedom or otherwise elevate neutrality as a central value. In fact, the expressive equality that the Supreme Court embraced was, in some important respects, counter to modern doctrine. Neutrality emerged in a more gradual, more contested, and more contingent manner than we now assume. 20
In tracing this doctrinal genealogy, this Article also aims to illuminate the development of modern rights jurisprudence, including the role of neutrality. Up until the twentieth century, fundamental rights were bimodal, consisting of retained natural rights (grounded on social-contractarian principles) and fundamental positive rights (grounded largely on common law). The details of these concepts will be spelled out later. 21 But two features bear emphasis here. First, although these rights were often listed in constitutions, they were not distinctively textual objects—that is, their force and meaning did not derive from their enumeration. Rather, jurists generally described rights as being grounded in unwritten fundamental law that predated the adoption of constitutions. Enumeration simply marked their existence and fundamentality. Second, jurists typically viewed fundamental rights as grounded in general law—that is, “rules that are not under the control of any single jurisdiction, but instead reflect principles or practices common to many different jurisdictions” 22 —thus fostering interpretive fluidity across state, federal, and even English decisions.
In the twentieth century, however, American jurists came to a very different understanding of rights. Reacting to the perceived flaws of Lochner-era doctrine, progressives relentlessly attacked both pillars of traditional rights jurisprudence. Natural rights were fictitious, they insisted, and common-law rights needed to be reshaped to promote social ends. As a result, constitutional rights became increasingly unmoored from social-contract theory and common law, especially once new appointments reshaped the Supreme Court from the 1930s onward. Rather than wholly abandon prior views, however, progressive jurists blended earlier strands of rights jurisprudence and began to treat constitutional rights as a species of positively enacted federal law, with federal judges assuming a special guardianship over their interpretation and enforcement.
This reconceptualization of fundamental rights did not necessarily point toward particular interpretive outcomes. But in a liberal era of secularism, individualism, and social fragmentation, what gradually emerged by the early 1970s was a notion of rights as spheres of personal liberty, free from socially prescribed ideas of morality. 23 T he very idea of a “right” thus came to embrace a sense of neutrality with respect to values. 24 And with this transformation, it became second nature to see the First Amendment as guaranteeing a privileged sphere of individual autonomy—protected by a requirement of neutrality—rather than as securing a limited right of toleration. In other words, the development of neutrality in modern expressive-freedom law was interconnected with a broader shift in the very idea of constitutional rights.
The story begins in Part I with an older understanding of expressive freedom under the First Amendment and its state-level counterparts. From the Founding through the early twentieth century, the government could restrict expression to promote the public good, subject to the rule against prior restraints and the privilege of discussing matters of public concern in good faith. 25 Neutrality was not required. In other words, Americans did not yet treat speech and press rights as nondiscrimination rules that made content-based restrictions presumptively unconstitutional and that forbade efforts to shape the way that people think. Indeed, even laissez-faire jurists recognized authority to restrict speech “tending to do harm to the public morals.” 26 Instead, the dominant paradigm was one of toleration—premised on private ordering within socially defined boundaries. 27
In some ways, this earlier law of expressive freedom recognized certain notions of equality—or, one might say, “neutrality.” 28 From the very beginning, equality of citizenship rights was axiomatic, thus barring the government from arbitrarily favoring certain speakers over others. 29 Nor was the government allowed to enforce uniformity of political and religious thought. 30 Equality was also reflected in the rule prohibiting the government from punishing people for holding certain beliefs, no matter how dangerous those views might seem. 31 In these ways, the law of expressive freedom embraced what might be described as forms of “neutrality.” My goal in contrasting earlier views with the modern notions of content and viewpoint neutrality, then, is simply to show how ideas of expressive freedom have changed, not to claim that all other potential variants of neutrality were missing, too. 32 My argument is simply that older notions of equality did not entail or presage the modern principles of content and viewpoint neutrality.
As described in Part II, these longstanding views of expressive freedom eventually began to change alongside broader jurisprudential shifts, including the acceptance of a more functional approach to legal interpretation. Rather than view law as a self-contained system of historically derived rules, jurists began to construe legal traditions by assessing their social functions. At the outset, however, reinterpretations of speech and press freedoms did not deny legislatures the power to restrict expression based on content or viewpoint. Laws could still target communicative harms. In fact, statutory restrictions of certain messages were sometimes harder to challenge than speech-restrictive applications of neutral rules.
Part III then traces the doctrinal moves that eventually culminated in an embrace of neutrality. Although content and viewpoint neutrality are generally paired today, 33 they did not emerge together. Moreover, neither principle initially arose in its modern form. For instance, judges in the 1940s articulated a nascent version of content neutrality as a way of confining the scope of First Amendment analysis—not as a presumptive rule against content-based speech restrictions. It was only in the late 1960s and early 1970s that the Supreme Court fully embraced content and viewpoint neutrality by shifting and merging earlier strands of doctrine. At that point, what had initially begun as a functional reinterpretation of traditional rules became something else entirely. Tied to a broader evolution in jurisprudence, the paradigm of expressive freedom shifted from toleration to neutrality. 34
Part IV considers implications of this history. In an age when anxiety about expressive freedom is growing, 35 retracing our steps is especially warranted. History alone may not tell us how to address contemporary problems . But studying our past can help us realize that modern perspectives are grounded in twentieth-century choices, not original or inexorable commands.
Before proceeding, it is worth making a few remarks about methodology. This Article focuses on internal legal perspectives. It aims to show how certain legal ideas changed, not why they changed. Nor does it aim to say anything about the real-world impact of legal developments. Such an account would no doubt be valuable, but exploring the external causes and effects of legal change is not the point of this Article. External developments are mentioned at various times to underscore an obvious point: the internal story was linked to a broader socio-political context. But my goal here is simply to recover internal legal perspectives and trace how they changed over time. 36
Along similar lines, this Article examines what people said about the law, not what they privately thought about it. 37 Of course, public statements do not necessarily capture what people really think. For instance, judges who disagree with existing precedent might try to move doctrine incrementally rather than reveal their views all at once. And perhaps what judges think is what really counts as “the law.” 38 This Article does not take a side in that jurisprudential debate. 39 But it does take a surface-level view of doctrine, focusing on legal rhetoric. Doing so has limits, but it should still be of value to a wide range of scholars and jurists.
So far, this framing may seem familiar, and perhaps even old fashioned. 40 But this Article departs from traditional doctrinal scholarship by treating the internal perspective itself as being fluid, not fixed. Most doctrinal histories retell the “official story” in our terms—explicitly focusing on Supreme Court opinions and implicitly adopting modern attitudes about the nature of constitutional rights. 41 By contrast, my goal is to analyze whatever materials political and legal elites previously considered authoritative and to analyze those materials using their interpretive assumptions, not ours.
For that reason, this Article evaluates different types of sources over time. To recover attitudes about expressive freedom in the nation’s first century, it examines a wide range of evidence, including the political and philosophical ideas that undergirded how Americans thought about rights. As the narrative moves into the twentieth century, it begins to concentrate on state and federal judicial decisions. And by the 1930s, the focus is almost entirely on U.S. Supreme Court opinions. That evidentiary shift is deliberate and tracks with changes in the way that American elites conventionally thought about the authority to interpret and enforce rights.
This methodology thus dovetails with my broader goal of showing that the histories of expressive freedom and fundamental rights are interconnected. The early twentieth century witnessed a revolution in views about the nature of rights—where they came from; the identity of their interpretive guardians; their means of enforcement; and their relationship to history, the common law, and morality. In order to understand the way that internal views of expressive freedom were shifting, then, we also need to recognize how the interpretive lens was changing. To borrow from Jonathan Gienapp, we cannot “keep[] the structure of [legal] conventions constant between present and past while merely filling in that structure with discreet component content [about particular doctrines].” 42 And that is especially true with respect to rights.
Doctrinal genealogies of this sort can be especially valuable in opening our eyes to new ways of thinking about topics that we otherwise tend to view uncritically. 43 Today, our understandings of expressive freedom and of rights are so infused with ideas of neutrality that those who dissent from the modern orthodoxy are often portrayed as challenging the very concept of free speech or the very concept of rights. Tracing doctrinal genealogies from an internal standpoint can at least free our minds from this type of liberal essentialism. 44
At the same time, doctrinal genealogies have limits as methods of critique. For example, this Article does not explore the causes or effects of neutrality, and therefore it cannot address the ways that neutrality might perpetuate or alleviate longstanding social or political inequalities. 45 Indeed, it does not aspire to be a critique of neutrality at all. The current liberal order may well be worth keeping. But this Article does challenge the notion that neutrality was baked into the core of the First Amendment and the very definition of rights from the beginning. American law did not, in fact, fully embrace these ideas until well into the twentieth century.