The Taming of Free Speech: America’s Civil Liberties Compromise
by Laura Weinrib
Harvard University Press, 2016, 480 pp.
Freedom of speech has, in recent years, been a rallying cry as much on the right as on the left. Sure, the protection of dissenters, including government whistleblowers, retains its currency among American progressives skeptical of state power. But the Supreme Court ruling in Citizens United v. Federal Election Commission (2010), which protects the speech rights of corporations, has come to symbolize a rightward tilt in our free speech jurisprudence. Plus, from university campuses to the Black Lives Matter movement, we have all become familiar with the seemingly odd spectacle of the left fighting for increased regulation of speech in the hope of either suppressing the repressive or amplifying the unheard in our cacophonous and wildly unequal era.
Does this right-wing capture of the language of expressive freedom represent a historical anomaly? Today’s status quo has, in fact, reshaped the way scholars treat the history of American free speech claims. Historians, especially those with sympathies on the left, have become more inclined to ditch their triumphalist First Amendment narratives for interpretations that supply speech rights with a checkered career, one that is neither as long nor as straightforwardly progressive as earlier generations once believed. Some of those same historians, moreover, have lately tried to ascertain just how the United States fell into its current mess. The full answer involves a lot more than tracing the reworking of a noble idea from John Milton to Oliver Wendell Holmes and beyond. Free speech, a political weapon even in Milton’s day, has always been embedded in other fights. It came into existence as something that could be wielded instrumentally by states, political parties, churches, guilds, unions, and those with personal ambitions and vendettas, as much as an imagined prerequisite for achieving truth, democracy, or a fulfilled self. And so it remains.
Laura Weinrib, the author of The Taming of Free Speech: America’s Civil Liberties Compromise, has taken this lesson to heart. Early on she notes that her first goal is to expose the now obscure radical origins of free speech theory in the United States. Her second is to explain why this vision failed—and, implicitly, how this left us with the flawed First Amendment jurisprudence of today. But she ambitiously casts her story as a revision of revisionism, and she places the United States’ chief NGO devoted to the defense of freedom of expression, the American Civil Liberties Union (ACLU), in an unexpected, and ultimately compromised, starring role.
At a basic level, Weinrib uses the story of the ACLU as raw material for a conce...
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