Part I of this paper describes early American understandings of the purposes and limits of freedom of speech. During this period, the outer bounds of freedom of speech reflected similar limits on the right of religious freedom: both were conceived within an overarching framework of natural rights delimited by legislative judgments about the common political good. Though there is scholarly debate about how much the Fourteenth Amendment may have altered that approach in certain details, the basic legal framework remained intact in the nineteenth century.
Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti- orthodoxy. Contrary to Professor G. Edward White's description of this development as free speech's "com[ing] of age," this article argues that the period is better characterized as the "adolescence" of free speech-one marked especially by the ascendancy of internally oriented and self-regarding justifications for both speech and religious freedom.
The article describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom, disagreeing with the work of some scholars who argue that, for cultural reasons, free speech in its present expansive form is more secure today than religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.
Marc O. DeGirolami, The Sickness Unto Death of the First Amendment, 42 HARV. J. L. & PUB. POL’Y 751 (2019).