Free speech as we know it occurred late in American history, is fragile, and could go away.
For most of American history, unpopular political views could (and did) get dissidents, organizers, publishers, and even artists thrown in prison.
The notion of a “free trade in ideas,” which sprang from the dissents of Justice Oliver Wendell Holmes in the 1920s, did not become mainstream jurisprudence until decades later.
What about private censorship? It’s allowed. Individuals and companies are “free to say what they want and to shun whichever ideas they choose.”
Only the government is prohibited from “interfering with Holmes’s marketplace of ideas,” because it alone possesses the frightening power to “arrest, detain, or execute someone for speaking out of turn.”
Republicans want to change this. So do three sitting Supreme Court justices — the usual suspects, Thomas and Alito, plus Gorsuch (who believes state governments should be allowed to regulate newspapers via state libel laws).
The private Federalist Society is the de facto agency that chooses Trump’s court nominees. All three of his Supreme Court appointees are Federal Society members. So if he’s elected again, it’s that group who will effectively fill any vacancies during a second Trump term. What do they want to see happen with free speech?
For starters, they want to repeal bans on race and sex discrimination. But they go even farther. “At the society’s 2021 gathering, speakers” demanded allowing state legislatures to have “power to punish” conservatives’ political enemies.
Trump, if re-elected, might not get to appoint more Federal Society members to the Supreme Court. Then again, he might. That makes “a vote for Trump … a vote to roll the dice on … free speech in the United States,” because the people he would appoint have “a drastically different vision” of the First Amendment than what we’ve become used to since the 1960s.
Read the entire article here.