Catholic University Law Review


Free speech in America stands at a precipice. The nation must decide if the First Amendment protects controversial, unconventional, and unpopular speech, or only that which is mainstream, fashionable, and government-approved. This debate is one of many legal battles brought to the fore during Covid-19. But the fallout of the free speech question will transcend Covid-19.

During the pandemic, the federal government took unprecedented steps to pressure private entities to push messages it approved and squelch those it did not. The Supreme Court will soon grapple with the issue of censorship during the pandemic. This article examines this litigation, along with the speech restrictions enacted by social media platforms at the behest of federal officials. It does so through a historical lens as it applies to free speech and prior restraint. Tracing this lineage is vital to understanding the importance of the right to think freely in the Covid era and how to apply historical concepts of free speech to contemporary challenges.

I conclude the solution to the problem of misinformation is more speech, not suppression. Unconventional speech thus warrants constitutional protection. The First Amendment is designed to preserve an uninhibited marketplace of ideas where truth will ultimately prevail. That process is difficult, time consuming, and not without error. However, it is the most prudent alternative to reliance on the government intrusion of prior restraint and viewpoint discrimination.