Journal of Free Speech Law: "Opening Dialogue" (The Future of Free Speech Symposium) by Lee C. Bollinger & Geoffrey R. Stone

The introduction to a symposium reprinted from Daedalus, the Journal of the American Academy of Arts and Sciences.

The article is here, though you can also read the full symposium; the introductory paragraphs (from Lee Bollinger's part of the dialogue):

To set the stage for the excellent essays that make up this volume on the future of free speech, let's begin where we often do when thinking together about the First Amendment: with some basic facts and fundamental observations about the constitutional command that "Congress shall make no law … abridging the freedom of speech, or of the press."

Of course, in the United States, "free speech" is not only part of the constitutional Bill of Rights; it is also a cultural and social norm by which we choose to live. Several of the essays in this volume therefore take note of how the meaning and health of "free speech" depend both on judicial interpretations of the First Amendment and on how all citizens and institutions interpret and abide by the general principle. Still, in our highly legalized, and constitutionalized, national culture, it is only natural that the interpretation of the constitutional right drives both the public and the private spheres in which "free speech" operates.

To begin, here are several observations worthy of note for those not fully steeped in the First Amendment. First, the idea of a First Amendment right of free speech, as we understand it today, is a relatively recent invention. The Supreme Court's jurisprudence on the First Amendment dates back to only a little more than a century ago. Although the First Amendment has been part of the Constitution since 1791, the Court did not begin interpreting its meaning until 1919, in cases arising out of World War I. (To mark the centennial of that moment, in 2019, we convened a group of prominent scholars, judges, and lawyers to create a collection of provocative and insightful essays in a book we called The Free Speech Century.)

Since 1919, there have been thousands of judicial decisions about "free speech" and "free press," which together constitute a massive and complex jurisprudence around the subject of the First Amendment. You and I are the professorial by­product of that development. When we began teaching as law professors in 1973, the First Amendment was merely one part of a conventional course on Constitutional Law. Within a few years, though, the Supreme Court's First Amendment jurisprudence became so dense and complex as it decided ever-more cases on these issues that law schools and constitutional law scholars thought it appropriate to subdivide the field of constitutional law into separate, free-standing courses, one of the most important of which focused exclusively on the First Amendment.

Over the past century, the scope of protections afforded citizens under the First Amendment has ebbed and flowed, although for the most part it has expanded dramatically. At the very beginning, in 1919, in the context of the hysteria surrounding World War I and the Bolshevik Revolution, the U.S. government prosecuted and punished people who merely dissented from the government's prevailing views, especially about the war and the draft. Looking back on that era today, it is surprising that the Supreme Court chose not to use the First Amendment to protect those who challenged the government's policies from often severe censorship. From the standpoint of how our nation now views the First Amendment, this was an inauspicious beginning indeed….