As the number of issues perceived as having First Amendment implication continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth-century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the belief that some forms of expression are incompatible with the aspirations of contemporary Americans for a civic-minded, decent, compassionate and responsible society.(1)
One might attribute to the contributions of retrenchment advocates an implicit questioning of the special constitutional and cultural status of free speech in America. Such a reading invites parallels between the perspective of retrenchment commentators and a much older view of the status of speech. That view was embodied in an often anthologized attack on Justice Holmes's dissent in Abrams v. United States(2) made by John Wigmore in 1920. In his attack Wigmore distinguished between "Freedom of Speech" and "Freedom of Thuggery," and maintained that a civilized society such as the United States, whose members enjoyed ample freedoms, had the capacity to distinguish those utterances that enhanced the body politic from those that corroded it. Wigmore suggested that American citizens had a moral, as well as a legal, right to repress speech that passed the boundaries of civilized interchange and accordingly threatened the fabric of the community.(3)
I am not primarily interested here in exploring the parallels between Wigmore's perspective on free speech and that exhibited by current retrenchment advocates. Nor is my central concern with the saliency of various arguments advanced in retrenchment commentary. The recent proposed retrenchment of libertarian free speech theory has stimulated me to consider a broader issue: How did free speech, and the First Amendment, come to be treated as special, both constitutionally and culturally, in America?
It is remarkable, given the significant attention to First Amendment issues in legal commentary, that no detailed explanation for the special status of free speech in twentieth-century America hitherto has been advanced. It is conventional wisdom in current constitutional jurisprudence that the First Amendment and the idea of protection for free speech, have been regarded for several decades as being at the very center of the American constitutional enterprise, whereas before World War I both the First Amendment and the idea of freedom of speech occupied a far more marginal status. Moreover, because of the increasing anthologization of some important work on the role of free speech in the late nineteenth century, scholars and students have a clearer understanding of the "prehistory" of modern First Amendment jurisprudence.(4)
But as yet no comprehensive inquiry has been undertaken into the question of why the First Amendment and freedom of speech "came of age," that is, came to occupy the status of constitutional and cultural lodestars, in twentieth-century America. This article attempts such an inquiry, and in the process seeks to revise some conventional wisdom on a related subject: the origins and evolution of the bifurcated review project, in which constitutional challenges to legislative infringements on property rights or economic activity received a lower level of judicial scrutiny than constitutional challenges to legislative infringements on noneconomic "rights" or "liberties."
Specifically, I argue in this article that the most complete and satisfactory account of the twentieth-century jurisprudential and cultural emergence of the First Amendment and the idea of freedom of speech is one that associates the elevation of speech to special status with the emergence, in the early years of the twentieth century, of a "modernist" consciousness. This modernist consciousness bore a distinctive relationship to democracy and capitalism, the two prominent political and economic models of what I call "modernity."(6)
In addition, I argue that the bifurcated review project, conventionally identified as beginning with Chief Justice Stone's celebrated "footnote four" in the 1938 case of United States v. Carolene Products Co.,(7) began several years earlier and was centered on speech cases. I also arque that although the expanded governmental regulatory apparatus that emerged in the early twentieth century was a necessary condition for bifurcated review, it was not a sufficient condition: on a theoretical level, that regulatory apparatus could have been accommodated through judicial deference to legislative regulation of all types of constitutionally based liberties. Bifurcated review emerged with the perception that speech was a special sort of liberty and deserved particular judicial solicitude in a modern democratic society.
Finally, I argue that as the progression of twentieth-century free speech jurisprudence has played itself out from the early twentieth century until the present, the original, self-reinforcing modernist premises that elevated speech to special status in America have fragmented and become self-opposing. This development potentially threatens not only the enhanced role of speech but the intelligibility of the bifurcated review project itself.
My argument is presented in the form of an intellectual history of free speech theory in twentieth-century America, with particular attention to the contributions of prominent commentators advancing successive rationales for giving special protection to speech. The primary purpose of that history, however, is not to describe the views of those commentators, whose contributions are familiar to students of First Amendment issues. It is rather to trace the emergence, and subsequent refinement and fragmentation, of the central intellectual premises driving twentieth-century free speech jurisprudence, and thus to establish the existence of a paradox that current First Amendment theorists must now confront: When everyone can speak, and everything can be said, speech has ceased to be special.
A Definitional and Analytical Framework
In this Part I set forth the framework for the intellectual history of First Amendment jurisprudence that follows, including definitions of some recurrent terms. I make no effort at this point to detail the connections between what I call modernist consciousness and the successive rationales for the protection of free speech that are discussed in this article. As a consequence, the framework may appear somewhat abstract. It seems useful, however, to prefigure the orientation of my argument in advance, and to suggest where its emphasis will differ from those of conventional accounts.
"Modernist" and "modernism" are ubiquitous and multifaceted terms that have been associated with the emotive as well as the cognitive realms of consciousness, and with developments in the arts, the humanities, and the sciences. This article focuses generally on the connections between modernism and unfolding doctrinal and theoretical developments in twentieth-century First Amendment jurisprudence. Given the professional orientation of the leading participants in that history - all writers about law - I both follow and depart from the helpful recent characterizations made by Dorothy Ross,(8) and hence I employ the term modernist in a particularistic fashion in this article.
I use the term modernist, to identify a perspectival orientation, or consciousness, characterized by a distinctive set of culturally and temporally bounded starting intellectual premises. Ross associates modernist consciousness with "the turn-of the-[nineteenth-] century recognition of the subjectivity of perception and cognition."(9) David Hollinger expands upon Ross's definition by equating modernist consciousness with an "enthusiasm" for "the cognitive capability of human beings," around which "[a] distinctive culture uniquely appropriate for modern society" could be organize[d]."(10) I accept Ross's and Hollinger's general formulation, but it requires some particularization as applied to the legal writers I survey in this article. Whereas Ross and Hollinger note that some modernists in the arts and humanities treated the discovery of innate subjectivity as a source of alienation and skepticism, a basis for recoiling from modernity, the modernist writers on law whom I discuss assumed that the cognitive capabilities of humans would be a source of enlightened, human-fashioned policymaking, provided that policies were grounded in rationality and empirically based truth.
Thus the orientation of the modernist legal writers I consider closely resembles that ascribed to certain American political scientists by Raymond Seidelman, who identified adherents of a "philosophy of modernism" in the discipline of political science between 1884 and 1984. Modernist philosophy, Seidelman suggested, rested on the assumption that once scientific knowledge had been acquired, "conflicts thought to be endemic to modem society could be rationally controlled, mediated and contained justly, equitably, and democratically."(11) The elements of modernist consciousness central to my subjects are identified in Seidelman's characterization: the value of scientific knowledge, the importance of rationality, and the significance of the democratic process in furthering individual freedom of thought. I am calling these elements cognitive freedom, rationalism, and empiricism.(12)
The modernist writers surveyed in this article took humans to be "free" in the deepest sense: free to master and to control their own destinies. In holding...