Lakier: The Invention of Low Value Speech

I just finished reading this fascinating paper by Genevieve Lakier (U. Chicago Bigelow), which reveals that the concept of low-value speech (which receives only weak First Amendment protection) and high-value speech (which receives full First Amendment protection) is a historically-created myth. The reality is that, at the founding and through the nineteenth century, both categories were viewed as entitled to some protection and subject to some regulation.

From the abstract:

“[The article] argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech — was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently. By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. It was to resolve this tension that the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern.”

The paper shows the value of interdisciplinary scholarship — without historical and anthropological methodology, its core insights would not have emerged. Andrew Koppelman (Northwestern) also has commentary here.