Common Law Baselines and Current Free Speech Doctrine

Many of the current divisions in judges’, scholars’, and laypeople’s approaches to free speech doctrine can be attributed to baseline problems. There is no neutral baseline against which to measure when the state has acted in a way that triggers constitutional scrutiny; there is no neutral baseline against which to determine which restrictions implicate speech that is covered by the First Amendment; and there is no neutral baseline against which to measure when harms caused by speech justify abridgment of that speech.One answer to these baseline problems is to incorporate the common law as a First Amendment baseline. The common law, as it existed at the time of the ratification of the First and Fourteenth Amendments, serves as a useful and constitutionally justifiable guide for understanding when speech can be restricted due to the harms it has caused. An approach that incorporates common law baselines is justified by the text, structure, and history of the Constitution. Further, contrary to most scholars’ and judges’ views, incorporating common law baselines into free speech jurisprudence accords well with current doctrine and represents a compromise between different views of free speech at the Founding. Finally, importing common law baselines into our understanding of how a law should be scrutinized by free speech doctrine lends coherence to the doctrine and helps illuminate current, emerging free speech issues. Common law baselines can help define which harms to consider in our free speech calculus, can shed light on how to approach antidiscrimination laws that affect expression, and can even explain our current, contested libel jurisprudence.