FREE SPEECH IN THE AMERICAN FOUNDING AND IN MODERN LIBERALISM

Extract

It is widely believed that there is more freedom of speech in America today than there was at the time of the founding. Indeed, this view is shared by liberal commentators, as one would expect, as well as by leading conservatives, which is more surprising. “The body of law presently defining First Amendment liberties,” writes liberal law professor Archibald Cox, grew out of a “continual expansion of individual freedom of expression.” Conservative constitutional scholar Walter Berns agrees: “Legally we enjoy a greater liberty [of speech] than ever before in our history.” This shared assessment is correct—from the point of view of the political theory of today's liberalism—but it is incorrect from the point of view of the political theory of the American founding.