Geoffrey Stone delivered this week's WIP talk, entitled Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century. At the start of the 20th century, there was virtually no free speech doctrine. The jurisprudence of the First Amendment developed through World War I, the red scares, McCarthyism, and Vietnam into what we have today: an imperfect, still developing, but cohesive model that remains the global standard (excepting a few high profile areas, like hate speech).
The first lesson we learned now seems like almost an afterthought, but is actually quite dramatic: To ignore the opening clause of the Amendment: "Congress shall the make no law". Instead of "Congress", we apply the First Amendment's restrictions to the whole of the federal government, and, through the Fourteenth Amendment, the states as well. We also ignore the text insofar as we do allow significant restrictions on free speech, starting with Holmes' famous example of those who falsely cry "fire" in the crowded theater.
The second lesson we learned involved three potential standards, tried and discarded: Hugo Black's absolutist approach, ad hoc balancing, and indeed the very idea of a single unified test for all free speech cases. Instead, our First Amendment doctrine as been built "backwards", starting with results that feel "intuitive" and then trying to get the jurisprudence to match. At the same time as we were rejecting these standards, we also learned a third lesson about the nature of free speech. Ideas such as the "chilling effect", government using pretexts to suppress unpopular views, and the propensity of restrictions on free speech to expand dramatically in popularity in times of crisis became well known to legal actors, who sought to redefine doctrine to accommodate.
Fourth, the recognition that these issues were growing in complexity caused the courts to try and split them up into more manageable subparts, which hopefully could be dealt with in more or less coherent manners. The distinction between content-based and content-neutral regulation, pioneered in the 1970s, is an example of this effort. On the former side of this divide, lesson five was to have intense suspicion of content-based regulation of speech. Indeed, restrictions based on speech content rapidly converged with the Fourteenth Amendment "strict scrutiny" standard -- one that was, in the words of Gerald Gunther, "strict in theory, fatal in fact." At the same time, the desire to divide speech cases up into smaller subparts also gave us lesson six, the concept of "low value" speech, such as obscenity, fighting words, or commercial speech.
Seventh, as content-based restrictions began approaching the near-absolutist "strict scrutiny" standard, the courts also began imposing exceptions to the regime. Such cases a exposing government secrets, speech by government employees, and speech by students all found themselves outside the general high bar the courts had set for speech restrictions. Courts began to recognize that not all speech acts were as important to the core concerns of the First Amendment.
Eighth, the Supreme Court had to figure out why it cared about content-neutral speech restrictions at all. If the First Amendment is about preventing censorship, then why do we care about laws which restrict speech without regard to content. The reason has to do with how putatively neutral restrictions can in fact severely circumscribe the ability of certain groups to advocate. And, more directly, often they can (indirectly) burden some groups more than others. Courts who have already learned to dig into the various circuitous routes by which the government can and has taken to suppress the speech of disagreeable groups are loathe to leave this particular door open.
Ninth, the question of what to do with the "public forum" has been raised. Two instincts are at war here: the government's ability to determine what happens on its own property (same as any other property owner), and the belief that certain public areas ought to be free and open arenas for public speech and deliberation. And, as a first step, this was the division the courts used to craft their doctrine, labeling certain types of public property (such as sidewalks) areas that have traditionally been seen as fora for public debate and providing additional protection for speech in those locations. In other locations, the government is subject to a "reasonability" standard for content-neutral regulations -- a rather low bar to leap roughly akin to whether the restriction is irrational.
The final lesson relates on how to treat regulations which only indirectly burden free speech. These come up in cases like United States v. O'Brian, upholding a conviction for destroying a draft card even though that also suppressed the speaker's message of opposition to the Vietnam War. In general, courts have been relatively reluctant to step in here, holding such regulations presumptively constitutional. However, when the burden on speech is particularly severe (such as in NAACP v. Alabama, regarding an Alabama law which would have forced the NAACP to publicly publish its membership lists), courts have been willing to strike them down.