Do we still want free speech?

Within the legal realm, freedom of speech has never been better protected in the United States. It was not better protected last year; it was not better protected a half century ago; it was not better protected in the Gilded Age or in the Era of Good Feelings or during the Cold War or at the Founding itself. Whatever else may be wrong with their constitutional order, today’s Americans are living through a Golden Age of free expression for which there is no historical counterpart at home or abroad. That pathetic whine you hear sometimes, that “America is the only country in which . . . ,” is particularly accurate when it comes to free speech. In 2019, America is an outlier.

Pick a period of American history at random and you will discover that things were worse for the dissenters. Only a handful of years passed between the First Amendment’s being ratified by the Founders and its being diluted by the passage of the Alien and Sedition Acts. In the antebellum period, many southern states attempted to perpetuate slavery by rendering it illegal for their residents to criticize the institution — as, for a while, did the House of Representatives — and, after the Civil War brought emancipation, those states passed similar laws in order to protect segregation. During the First World War, Woodrow Wilson took his open disdain for the Constitution to its logical conclusion, began imprisoning critics of his administration, and was backed repeatedly in his attempt by the Supreme Court. And so on, and so forth. Plenty of red ink has stained America’s history.