I recently finished The Great Dissent which describes the thought process Supreme Court Justice Oliver Wendell Holmes Jr went through as he changed the interpretation of the First Amendment and free speech in the United States. These days we all take the scope of free speech for granted and assume its a static part of our democracy but it went through multiple iterations and will likely continue to do so - something I didn’t even realize.

Justice Holmes wrote his dissent in 1919 which laid the foundation for the modern interpretation of free speech. Before then it was significantly handicapped. For example, censorship was common before the 20th century as well as the heavy restrictions around public speeches and gatherings. Even when they were legal, you were still accountable for what was said which was up to the interpretation of protective and jingoistic courts. Unsurprisingly, this led to many limiting what they said in order to avoid reprisal.

Over the course of the 20th century the interpretation changed to not penalize the speaker and instead follow the rule of “clear and present danger” when determining if something should be truly limited. This led to stronger opposition and more thoughtful conversations which I like to think led to a healthier and more tolerant world.

These days we see pundits referencing free speech as if it’s a static entity but it has and will continue to evolve. What we define as free speech now will be different in 50 years. It’s difficult to imagine it changing but laws invariably change along with society.


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