Challenging the “Worthy” Tradition: Revisionist Interpretations of Free Speech in American History

Two young legal historians have made 2016 an important year for scholarship on the history of free speech in the United States. Sam Lebovic and Laura Weinrib have written extremely original and well-written books that reinforce each other in challenging the dominant interpretation of twentieth-century developments. Overwhelmingly, scholars agree that the Supreme Court moved from a restrictive to a protective conception of First Amendment rights, a transformation that, in practice, benefited the political Left at least into the 1970s. Harry Kalven, Jr., one of the great First Amendment scholars of the mid-twentieth century, expressed the general approval of this transformation in the title of his book analyzing the Supreme Court’s treatment of free speech issues from World War I until 1974: A Worthy Tradition: Freedom of Speech in America (1988). Without referring directly to Kalven, the revisionist accounts by Lebovic and Weinrib cast doubt on understanding the First Amendment tradition as “worthy.” Both acknowledge that the Supreme Court increased the protection of expression from government interference. But they maintain that the Court’s conception of free speech as a “negative” and “neutral” right offered substantial support to conservative interests and often undermined the public welfare. Making excellent use of original sources, they uncover neglected or forgotten alternative conceptions that did not prevail. Lebovic focuses on unsuccessful attempts throughout the twentieth century to develop a “positive” right of access to the news, which its proponents deemed necessary to the effective exercise of speech. Weinrib emphasizes that the early leadership of the American Civil Liberties Union (ACLU) tied its defense of free speech to the organizational and redistributive goals of the radical labor movement while expressing skepticism that courts would provide meaningful protection.

Like many revisionists, Lebovic and Weinrib occasionally exaggerate the faults and ignore the strengths of the tradition they challenge. Most strikingly, they do not convey the significant extent to which critics of government policies and officials have benefited from the Supreme Court’s doctrinal and theoretical innovations. Yet their central arguments are convincing.

Lebovic frames his historical narrative by invoking a speech by President Roosevelt in 1938 that differentiated “freedom of the press” from “freedom of the news.” Although Roosevelt himself did not elaborate this distinction, Lebovic further defines and contrasts these concepts. Freedom of the press, he maintains, has retained from its origins in eighteenth-century classical liberalism the traditional meaning of freedom from government interference. He variously characterizes it as a “negative” liberty or right, individualistic, neutral, objective, formalistic, antistatist, and reflecting the laissez-faire “marketplace of ideas.” Freedom of the news, by contrast, derives from the “social liberalism” that emerged among Progressives in the early twentieth century and “sought to use the state to create the possibility of autonomous individuality” (p. 23). A “positive” right that may require government intervention and regulation, it entails meaningful access to accurate information from diverse sources with competing viewpoints. Pointing out that the history of free speech in the twentieth century “is normally told as a tale of rising liberalism, with more and more speech becoming constitutionally protected over time,” Lebovic “recasts the history of the First Amendment” (p. 23) by demonstrating the repeated though unsuccessful efforts to guarantee freedom of the news as well as freedom of the press. In doing so, he shows fascinating relationships among many different topics that have not previously been juxtaposed. He concludes that “First Amendment rights have never been more highly protected, but the free flow of news to the public is far more tenuous, and rests on more fragile foundations” (p. 6).

In the 1920s, Lebovic observes, soon after Justice Oliver Wendell Holmes, Jr., influentially invoked the “marketplace of ideas” to justify First Amendment protection for expression, Walter Lippmann and John Dewey “began to grope toward a new conceptualization...