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More on How We've Supposedly Lost Our Traditional Free Speech Rights:

Commenter PGofHSM puts it well, responding to people who don't just complain about current speech restrictions, but argue that somehow we once had free speech but don't any more:

I'm still trying to figure out when the golden age of political free speech was.

A worthy challenge, I think. Let's even set aside sexually themed speech, purely commercial advertising, and epithets -- I think this speech should generally be constitutionally protected, but I'm willing to ignore that speech for purposes of this argument (since some of the people whom I'm generally trying to persuade believe that such speech is too far removed from political matters to merit protection). Let's focus on speech that is related to political, religious, or moral matters. When has such speech in the U.S. ever been materially more protected from government restriction, on balance, than it is now? I don't think there ever has been such a time.

I should say that I have argued against some relatively novel speech restrictions, such as hostile environment harassment law, or the recent broadening of restrictions on expensive speech about election campaigns. My point is simply that on balance speech protections, even when focusing on speech on political, religious, or moral matters, are about as broad today as they ever have been -- the high water mark having largely been achieved in the 1970s and 1980s, and on balance not materially retreated from since then -- and much broader than they often have been.

Duffy Pratt (mail):
I'm not sure how you would judge this. I guess you would have to be able to point to laws that were on the books in earlier times that would now be struck. Are there many such laws?

You cant reach this conclusion because courts are now apt to strike legislation on free speech grounds. That evidence could just as easily show a hostility to speech rights by legislatures (or executive action).
7.20.2007 3:00pm
James Lindgren (mail):
Not being an expert in the area, I couldn't give a global answer, but I think that campaign activities are less free and conducting research in universities is less free (though whether federal restrictions are constitutional has not been seriously addressed by courts).

On campuses, speech is much less free, but that has more to do with norms than it does with any legal changes.
7.20.2007 3:18pm
Richard A. (mail):
As someone who went to Berkeley in the 1960s, I would have to question that assertion about speech on campus being less free in the present. The entire free-speech movement of 1964, you may recall, came in response to what amounted to a total ban on free speech in public places on campus. And that sort of thing was routine up till then. If there was a golden era of free speech in America, the '50s and '60s weren't it.
7.20.2007 3:59pm
Mark Field (mail):
I agree with Prof. Volokh. It's not just protection from government restriction, it's protection from vigilante action as well.
7.20.2007 4:24pm
Jonathan B.:
Speech must be more strictly regulated today for it to be as free as in any previous era. Looking at the rules that censor speech is only one side of the coin; determining how "free" speech is requires considering the opportunities to speak and to be heard, too. Today, the average citizen has a vastly greater ability to share an opinion than in times past. With increasingly affordable internet, desktop publishing, home recording studios, cell phones, and transportation, the exchange of ideas has never been easier than it is today.

I'm not a scholar of the subject, and I am loathe to support any censorship whatsoever, however I suspect that the claim of lost liberties cannot be maintained broadly--it cannot be said that our freedom of speech has been diminished--but rather that criticism of censorship needs to address specific breaches of our right to speak if correction is desired.
7.20.2007 4:28pm
ifoughtthelaw (mail) (www):
To the extent that Supreme Court jurisprudence on the subject is helpful, I think the Pentagon Papers Case might be considered a high water mark for protection of political speech from government interference. There could be a dispute as to whether the speech at issue there was truly political, though Justice Black's concurrence certainly couches it in those terms, and in the broader framework of the right of the press to criticize the government. I strongly doubt that the case would come out the same way today, or that it would even be a 5-4 decision going the other way.
7.20.2007 4:47pm
uh clem (mail):
While the First Amendment was passed in 1791, it didn't get "incorporated" until the 14th was enacted in 1868, and the legal precedents that established this right in practice took another 50 years to appear.

Bottom line is that speech restrictions by local and state laws were tolerated by the courts (and convictions under them upheld) until the early 20th century.

So, no golden age in the past. Just the opposite.
7.20.2007 4:53pm
BobH (mail):
Expanding on the notion, I can't think of a time when civil liberties in general were "freer" than they are now -- at least for the vast majority of people.
7.20.2007 5:25pm
Henri LeCompte (mail):
Hmmm, I have it on the good word of a number of prominent political commentators that the Bush administration is shredding the Constitution on a daily basis (an itsy-bitsy piece at a time, I guess). Surely you all have felt the oppression? The inability to speak your mind about "the war"? The apprehension that Guantanamo was in your future should you annoy der Fuhrer? You have not heard the tales of American citizens being "disappeared"?

How is it possible that so many of my fellow Americans-- folk of sound mind and body-- perceive an ugly atmosphere of McCarthyism, when the rest of you do not? Aren't we being brainwashed and stampeded into throwing our civil liberties out the window? I could swear that I have read this assertion many, many, many times. In fact, this may be the first thread I have read asserting the opposite in... years.

I don't get it. Straaaaange.
7.20.2007 6:19pm
TruthInAdvertising:
I guess you missed it where people were being tossed out of public events by the Secret Service for wearing t-shirts critical of the President.

http://www.buzzflash.com/articles/analysis/202

Not exactly First Amendment friendly.
7.20.2007 6:58pm
Fub:
Eugene Volokh wrote in the original article:
Let's even set aside sexually themed speech, purely commercial advertising, and epithets -- I think this speech should generally be constitutionally protected, but I'm willing to ignore that speech for purposes of this argument (since some of the people whom I'm generally trying to persuade believe that such speech is too far removed from political matters to merit protection). Let's focus on speech that is related to political, religious, or moral matters. When has such speech in the U.S. ever been materially more protected from government restriction, on balance, than it is now? I don't think there ever has been such a time.
I'll make some quibble with excluding "epithets" and "sexually themed speech" from political speech. Much of such speech is inherently political.

For example, George Carlin's "seven words you can't say" riff, for which Pacifica was prosecuted, was essentially a political critique of a government policy to ban certain words from broadcast. It would be difficult to make that same critique as entertaining and incisive (and hence as politically effective) without saying those words.

As a commenter in a previous thread pointed out, in the 1970s the FCC issued a warning that broadcasters refrain from airing material which (the FCC thought) advocated the use of illegal drugs. Such advocacy is also distinctly political. It may or may not be politically effective, and it may or may not be perceived by some as political; but it is as inherently political as, say, speech advocating violation of segregation or miscegenation laws, or speeding laws, or any other laws.

I think there is a plausible argument that the reason some in government seek to ban such speech is precisely because they believe and fear (correctly or not) that the speech will be politically effective.
7.20.2007 7:23pm
M. Lederman (mail):
Eugene: The restriction on election-related speech by corporations and unions -- actually, a requirement that they use dedicated funds rather than treasury money -- is not new. It's been around since 1947. What's new is that the Court just basically gutted a 60-year-old rule.
7.20.2007 9:06pm
Eugene Volokh (www):
Marty: I used the word "broadening" in "the recent broadening of restrictions on expensive speech about election campaigns" advisedly.
7.20.2007 11:01pm
kdonovan:
I don't think that just looking at laws is the way to go here. You also need to look at how likely the laws are to be enforced in a meaningful way.

Still if I had to guess I would probably pick the 2nd Wilson administration as the low point of free speech in the US. The Alien and Sedition Acts and the Civil War era certainly saw extensive federal attempts to interfere with political speech but they seemed to have been quite unevenly enforced. Though widely regarded as one of the worst Presidents I actually think Harding's 'return to normalcy' which ended much of Wilson's political and economic restrictions is a much unappreciated achievement.
7.21.2007 12:14am
PGofHSM (mail) (www):
Prof. Lindgren,
What sort of research do you think is being constrained today that was not constrained prior to the 1970s? ("the high water mark having largely been achieved in the 1970s and 1980s") And when you say "constrained," do you mean that it is research the government once funded/ encouraged that it no longer does?

uhclem,
Even before 14th Amendment incorporation, most states had their own free speech protections in state constitutions, as Thomas notes in his Morse v. Frederick concurrence (in order to defend his use of 19th century schoolmaster behavior as an indication of what the Founders intended).

fub,
Given the narrow area in which those who declare the First Amendment to protect only "core political speech" believe that speech to be, I don't think advocating illegal activity would be counted by them as inherently political. Advocating *change in the laws* would be. So my saying "You should take a bong hit" wouldn't be protected, but my saying, "Jesus would have legalized bong hits" would.
7.21.2007 1:43am
PGofHSM (mail) (www):
kdonovan,
Check Lexis or Westlaw for the courts' upholding the constitutionality of the laws. This was only an issue because people were in fact being prosecuted under them. Some people deem Learned Hand overrated because they think he betrayed his earlier liberalism in his later years, especially when he upheld the Smith Act. (I think Judge Hand actually was consistent in a formalistic sense, albeit perhaps not an ideological one; he never ruled to strike down the Espionage Act, only to construe it narrowly such that it did not apply to Masses Publishing Co., whereas he felt that the defendants in Dennis clearly had violated the Smith Act.)
7.21.2007 1:56am
Sk (mail):
"When has such speech in the U.S. ever been materially more protected from government restriction, on balance, than it is now?"

?The day before McCain Feingold was passed?

Was this supposed to be difficult?

Sk
7.21.2007 11:08am
PGofHSM (mail) (www):
Sk,
As McCain Feingold passed in 2002 and was signed by Bush, I suppose that makes the argument the Bush Administration has been a new era of repression.
7.21.2007 12:55pm
Randy R. (mail):
Also, we can't say Bong Hits 4 Jesus if we are high school students, or anything else that might somehow talk about drugs, as we did in the past.
7.21.2007 12:59pm
JosephSlater (mail):
M. Lederman mentions 1947, which also was the year the Labor Management Relations Act was past. The LMRA added section 8(b)(4) to the National Labor Relations Act, and section 8(b)(4) restricts all manner of union communications (including but absolutely not limited to pickets) to customers, workers, and suppliers of "secondary" employers. The Supreme Court has danced around the First Am. problems with this for decades. Yet oddly, I've never heard libertarian advocates of free speech discuss it.
7.21.2007 1:24pm
Eugene Volokh (www):
Joseph Slater: I generally criticize the Court's lesser protection for labor picketing in my Speech as Conduct article, which I've been excerpting on this blog over the last few weeks; I in particular criticize Giboney, the font of this lower protection, though I also in passing criticize aspects of NLRB v. Retail Store Employees Union, which upheld the restriction on secondary picketing. (As I read Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &Constr. Trades Council, 485 U.S. 568 (1988), it looks like this caselaw supporting lower constitutional protection probably wouldn't extend to non-picketing speech.)
7.21.2007 5:59pm
JosephSlater (mail):
Eugene:

I will read with interest what you wrote (probably after I get back from the Berlin Law &Society Conference). The problem, IMHO, is that the courts won't just hold 8(b)(4) unconstitutional, but rather rely on rather strained reasoning, as in DeBartolo (the "picketing vs. handbilling" distinction) and the Tree Fruits case (allowing product picketing in front of a secondary employer but not picketing the secondary employer itself). None of that is in 8(b)(4), and 8(b)(4)'s literal reach would, again IMHO, clearly violate the First Am. So courts keep dancing around it.
7.21.2007 8:44pm
PJ (mail):
What? No mention of the sudden appearance of 'Free Speech Zones'? No words about the (mostly illegal, but done anyway) incarceration of democratic protesters on a certain pier in NYC?

I'm increasingly annoyed by the disconnect between the police and the courts; it does no good for the courts to rule an action legal if the on-the-ground reality is that the police will arrest you for it (however illegally) anyway.
7.23.2007 9:11pm