Missing the Point of the Past (and the Present) of Free Expression
Volume 89, Online
By Stephen M. Feldman [PDF]

In The Invention of Low-Value Speech, Genevieve Lakier criticizes recent free expression developments from a powerful historical perspective. She launches the article with a discussion of United States v. Stevens,  which held unconstitutional a statute proscribing the creation, sale, or possession of so-called crush videos. The Stevens Court articulated and relied on the two-level theory of free speech.  According to this theory, the First Amendment fully protects most expression but does not protect (or weakly protects) certain low-value categories of expression, such as obscenity and fighting words. The crux of The Invention of Low-Value Speech is Lakier’s challenge to the historical underpinning of Stevens and the entire two-level theory.

This Essay argues that, although Lakier gets much of this history correct, she ignores a large and crucial part of the story: during the 1930s, the nation’s practice of democracy substantially transformed, and that transformation strongly influenced the Court’s treatment of First Amendment cases. Moreover, the history of the struggle over democratic government and free expression has important ramifications for our current circumstances.

This Essay briefly summarizes Lakier’s historical critique of the two-level theory and describes the lacuna in Lakier’s historical analysis of the post-1937 Court’s free expression transition. The Essay concludes by explaining why the history that Lakier misses matters to our current understanding of free expression and the Roberts Court.

Stephen M. Feldman is a Visiting Scholar at Harvard Law School. He is also a Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science at the University of Wyoming.