Edwards on the Minority Rights First Amendment

Jerry Edwards, West Virginia University College of Law, has posted The Birth of the Minority Rights First Amendment:

An incongruence exists in the literature on the nineteenth-century history of expressive freedom. Legal-tradition scholars have determined that the First Amendment was majoritarian, observing that outside of judicial enforcement of the rule against prior restraints, courts rarely involved themselves in disputes over expressive rights. Instead, the judiciary deferred to the judgments of legislatures and juries. Meanwhile, scholars examining the nineteenth-century popular tradition discovered a very different understanding of the First Amendment. They found that the antislavery conception of expressive freedom centered dissenters’ rights, arguing that Republicans embedded a libertarian understanding of free speech in the Fourteenth Amendment in 1868. This Article reexamines the nineteenth-century popular tradition and discovers new evidence that reconciles these seemingly incompatible traditions.

The popular-tradition scholars are correct that the antislavery movement oversaw a shift from the founding generation’s majoritarian understanding of expressive freedom to a minority rights conception. Slave states, emboldened by the majoritarian paradigm, suppressed antislavery advocacy and the fledgling Republican Party in the South. This prompted antislavery Republicans to advocate for protection of political dissenters, unpopular minority groups, and free discussion nationwide, birthing the minority rights First Amendment. However, Republicans did not intend for this to be a counter-majoritarian right. The judiciary had historically backed the Slave Power, so Republicans did not trust it to secure and preserve liberty. Instead, they sought to implement their minority rights vision through normative prescriptions and structural protections—namely, multiracial democracy in the South and congressional enforcement of civil rights. Accordingly, majoritarian legal doctrine was not a barrier to the Republican vision of expressive freedom. Unfortunately, this project failed when white majorities, aided by federal acquiescence, overthrew multiracial democracy in the South, taking down the minority rights First Amendment with it.

This Article’s findings provide further support for the view that the juricentric First Amendment is a twentieth-century invention. This means that the history the Supreme Court has used to justify its interventionist approach in First Amendment cases is misleading at best and mistaken at worst. Its reliance on these historical misrepresentations has proven detrimental to the development of speech doctrine, obscuring the contingent decisions it is making in the present. This Article suggests that the Court embrace transparency, eschew law-office history, and recommit to defending multiracial democracy.

--Dan Ernst 

Wiebolt on the Lawyer behind School Choice

Dennis J. Wieboldt, III, soon to be a VAP at Notre Dame Law, has posted William Bentley Ball and the "Century of Struggle" for School Choice:

The Supreme Court’s 1971 decision in Lemon v. Kurtzman profoundly shaped the development of federal constitutional law. For more than fifty years, Lemon served as the basis for invalidating countless government programs that sought to support private religious education, posing a formidable challenge to the late-twentieth-century school choice movement. In response, school-choice advocates spent decades incrementally dismantling the Court’s three-part test for determining when government programs seemingly supporting religion violate the Establishment Clause. Their efforts culminated in Kennedy v. Bremerton School District (2022). There, the Court not only opened new doctrinal avenues for defending a wide range of school-choice programs, but also vindicated the litigators who unsuccessfully argued Lemon decades earlier.

To understand Lemon and the forces that led to its eventual undoing, this article turns to William Bentley Ball, a relatively little-known Catholic lawyer who argued Lemon before the Supreme Court in March 1971. As Ball himself remarked after oral argument, the “fight” for school choice in Lemon “was the windup of years of work – a century of struggle.” To be sure, Ball was not litigating for a century before Lemon, but the ideas that so decisively shaped his thinking about the constitutionality of public funding for private religious education indeed emerged one hundred years before he appeared at One First Street. By tracing Ball’s intellectual formation in the lead-up to Lemon, this article sheds new light on the history of the twentieth-century Supreme Court and one of the legal campaigns that continues to figure prominently in our national debates over the Religion Clauses.  

--Dan Ernst 

Smith and Chang on Stravinsky's "Star-Spangled Banner" and the Law

Michael L. Smith, University of Oklahoma College of Law, and Yoo Jung Chang, a cellist, have posted Stravinsky's National Anthem:

Igor Stravinsky (LC)

In January 1944, famed composer Igor Stravinsky was scheduled to conduct the Boston Symphony Orchestra in performing his controversial arrangement of “The Star-Spangled Banner.” Before the performance took place, the police arrived in Stravinsky’s dressing room and informed him that his arrangement violated a Massachusetts law against altering the national anthem. Faced with the prospect of a criminal violation, and with the police already removing the offending arrangement from the music stands, Stravinsky opted to conduct the traditional version of the anthem.

This Article takes a deep dive into Stravinsky’s distinctive anthem arrangement, surveying its development, performance, and reception. Along the way, we dig into Massachusetts’s anthem restriction—a 1917 law that remains on the books to this day. In doing so, we address the parallels between the law’s wartime development and its wartime enforcement against Stravinsky. We argue that Stravinsky’s run-in with the police was unwarranted, both because Stravinsky’s arrangement did not violate the statute, and because the statute itself ran afoul of the First Amendment. Our historical investigation and analysis shed light on modern issues, including the phenomenon of patriotic outrage, the role of moral panic in the development and enforcement of the law, and the dangers of leaving unconstitutional zombie laws on the books.

--Dan Ernst 

Weekend Roundup

• Sally Hadden, Western Michigan University, will speak on “The First Massachusetts Constitution and How Town Actions Derailed It,” online at noon today as the first in the Bidwell House Museum's series of history talks.  It is free for members of the museum and $15 for others.  Register here.

• A review symposium on Serena Mayeri’s Marital Privilege: Marriage, Inequality, and the Transformation of American Law, with contributions from Albertina Antognini, Cary Franklin, Jessica Dixon Weaver, Deborah Dinner, Linda C. McClain, and Katie Eyer, with a response by Professor Mayeri (BU Law Review Online).  

• Marlene Trestman will be in conversation about her book, Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin, in person and online, with Senior Judge Beryl A. Howell of the US District Court for the District of Columbia at the Capital Jewish Museum in DC on June 4, from 6:30-7:30.  Register here.

• Bill Littlefield reviews Gautham Rao's White Power: Policing American Slavery (arts fuse).

• Jonathan Parry reviews H.S. Jones’s Liberal Worlds: James Bryce and the Democratic Intellect (London Review of Books).

• Robert Tsai and others will discuss John Brown's provisional constitution on June 29. 

• Rodger Citron on that podcast with Samantha Barbas on her book on New York Times v. Sullivan (Verdict).   

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Weekend Roundup

• From In Custodia Legis: A Brief Legislative History of the U.S.-Canadian Border and Nathan Dorn on James Wilson and Natural Law in the First Years of the Republic. 

• Rodger Citron interviews Samantha Barbas on the Civil Rights setting of her book on New York Times v. Sullivan (Touro Law Review Podcast).   

• On May 5, the Historical Society of the New York Courts and the Supreme Court of the State of New York, Appellate Division, Third Department, will host New York’s Own Revolution: The Anti-Rent War of the Hudson Valley and Its Relevance Today, a film screening with Bruce W. Dearstyne, Nancy Newman, and Victoria Kupchinetsky, 

• On June 24, the Gerald R. Ford Presidential Museum will host The Original Debates over Constitutional Interpretation with Jonathan Gienapp. 

• On June 25, Jesse Wegman, a Senior Fellow at the Brennan Center for Justice, will speak at the Atlanta History Center on his book The Lost Founder: James Wilson and the Forgotten Fight for a People’s Constitution.

• On September 17, the Clough Center for the Study of Constitutional Democracy at Boston College will hold the latest version of its annual event, What the Constitution Means to Us, with Doris Kearns Goodwin and Akhil Reed Amar. 

• For Law Day, the Supreme Court Historical Society posted Judge Jon O. Newman's conversation with Ross Davies on three lost early circuit court opinions by the justices. 

• When, in his address to Congress, King Charles III said that “the U.S. Supreme Court Historical Society has calculated that Magna Carta is cited in at least 160 Supreme Court cases since 1789, not least as the foundation of the principle that executive power is subject to checks and balances” he apparently was referring to Catholic University professor Derek Webb’s article in the Journal of Supreme Court History, “What Say the Reeds in Runnymeade? Magna Carta in Supreme Court History,” says the Supreme Court Historical Society.   

• Part 2 of the Lawbook Exchange's April 2026 list of Scholarly Law and Legal History is here.

• ICYMI: A Lancaster, PA, museum opens an exhibit on Thaddeus Stevens (WGAL). Frankfort, Kentucy, courthouse may be renamed in honor of John Marshall Harlan (Kentucky Today). The Rise and Fall of Judge William H. Simmons (History Link).  Lawrence Glickman, Cornell University, on birthright citizenship in the advice columns (Atlantic).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers 

DeFraia on Branzburg's Distortion of Policy and History

Daniel DeFraia has published "The Branzburg myth: how secrecy and law distort history and misinform policy" online, open-access in the American Journal of Legal History:

This is an article about how secrecy and law distort history and misinform policy. Beginning in the 1960s and culminating with the Supreme Court’s 1972 ruling in Branzburg v Hayes, litigation and debate over the reporter’s privilege established the expectation that journalists resist subpoenas, warrants, and informal requests for evidence. However, archival research and records obtained in an Freedom of Information Act (FOIA) request reveal that journalists cooperated with federal criminal investigations after Branzburg. The case, symbolic of the rise of adversarial journalism, did not end compliance, but submerged it. Secrecy—overclassification of records, non-disclosure of grand jury proceedings, and the confidentiality of subpoenas—has allowed a narrow understanding of journalists’ role in a democracy to dominate case law, historical and legal scholarship, and public debate. Secrecy and law distorted the public record, then history, as salient moments of conflict disproportionately shaped collective memory, which misinformed scholarship and policy debate on news subpoenas. The hidden tradition of journalists cooperating with local, federal, and international authorities is, this article concludes, an argument for protecting press freedom.

--Dan Ernst 

Wieboldt on Catholic Legal Thought and First Amendment Originalism

Dennis J Wieboldt, III, a JD-PhD candidate at Notre Dame, has published ‘But the original intent of the Constitution would be restored’: Catholic legal thought and the emergence of First Amendment originalism, 1947-87, online and open access in the American Journal of Legal History:

Several scholars of twentieth-century American legal history have recently argued that originalism—a method of constitutional interpretation commonly associated with the conservative legal movement—first emerged as southern Republicans and conservative Democrats (many of whom were evangelical Protestants) reacted to the US Supreme Court’s 1954 decision in Brown v Board of Education. But southern opponents of Brown were not the only figures to have self-consciously introduced originalist ways of thinking about the Constitution into the nation’s legal vocabulary at mid-century. Indeed, this article reveals that, nearly a decade before Brown, Catholics hundreds of miles away from Selma and Little Rock similarly sought to convince their neighbours that the Constitution ought to be understood according to the intentions of its eighteenth-century drafters (or, when appropriate, its nineteenth-century amenders). And importantly, they did so not to undermine the Civil Rights Movement, but rather to ensure that the Court’s 1947 decision in Everson v Board of Education would not stymie the American Catholic Church’s efforts to obtain public financial assistance for parochial schools.

In encouraging jurists, scholars, and voters to understand the First Amendment’s Religion Clauses through the lens of founding-era history, post-Everson Catholics became as responsible as anyone outside of the Supreme Court for originalism’s decisive (re)shaping of the Religion Clauses during the next half-century. But this ultimately proved troubling to some as the conservative legal movement became ascendant in the 1980s. From the perspective of these critics of First Amendment originalism, God’s natural law, not Thomas Jefferson’s metaphorical ‘wall of separation’ between church and state, should determine the First Amendment’s meaning. In concluding, this article therefore suggests that Catholics initially turned to originalism pragmatically to vindicate their background philosophical and theological conceptions of religious liberty, but increasingly came to realize that originalism—to the extent that it relied on positivist assumptions about the nature of individual rights—was alone inadequate to do so.

--Dan Ernst 

Sunday Roundup

• Aziz Rana, Boston College, will discuss his book, The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them, as the 21st Annual Pro Lecture in Legal History at the University of Nevada, Las Vegas, on Monday, February 23, 2026, 12:15 p.m.–1:15 p.m. in the Thomas & Mack Moot Court Building. 

• Orville Vernon Burton will deliver “The First Amendment and Lincoln’s Constitutional Legacy” in the Clemson University Humanities Hub's annual Lectures in Law and Humanities Series on March 5 at 5:00 p.m. on the Watt Auditorium. 

• The University of St. Thomas's notice of Anthony M. Joseph's amicus brief in Chiles v. Salazar on the history of medical licensing in the United States.

• Adam Feldman on How academic briefs shape Supreme Court decisions (SCOTUSblog).

--Dan Ernst

Sherman and Nelson on the Weak Historical Case for Regulating Occupational Speech

Paul M. Sherman and Daniel Nelson of the Institute for Justice have posted The (Weak) Historical Case for Licensing Speech:

Increasingly, governments use occupational licensing to control who may speak on certain subjects and what licensees may say. The Supreme Court has twice rejected governments' doctrinal justifications for excluding occupational speech from First Amendment protection-first in NIFLA (2018) and again in Chiles (2026). But it has left open one possible source that could justify such exclusion: "persuasive evidence" of a "heretofore unrecognized" tradition of regulating occupational speech. This Article--the first to fully examine whether any such tradition exists--shows it does not.

This history has direct implications for today. Protecting occupational speech would protect against government controls on conversations between professionals and their patients that extend beyond the "conversion therapy" at issue in Chiles, like gender-affirming talk therapy. And it would undermine modern-day bans on "unlicensed" advice, including bans on who may provide legal advice, which have spurred our nation's current "access-to-justice crisis. 

--Dan Ernst 

Kessler on the History of Viewpoint Discrimination

Jeremy Kessler, Columbia Law School, has posted The Short, Strange Career of Viewpoint Discrimination: From Teachers Unions to Social Media Platforms, which is forthcoming in Platform Regulation and Freedom of Expression in the US and Europe: Across the Great Divide, edited by Ronald J. Krotoszynski et al. (Oxford University Press):

In Moody v. NetChoice, the Supreme Court treated the norm against viewpoint discrimination as intuitive and timeless. Yet the majority opinion's portrayal of social media platforms as the victims of viewpoint discrimination relied entirely on post-1970 caselaw. That is because what this Chapter calls “viewpoint discourse” was an invention of the 1970s legal elite. That elite was responding to a distinctive social problem: the growing power of public-sector unions and politically progressive nonprofits. These groups represented particularly assertive factions of the “new” or “information” class: the ever-expanding population of workers who earn a wage by manipulating information, whether stored on hard drives or in the human mind. Though far from a monolith, this class tends: to undermine traditional values; to interfere with the profit-maximizing strategies of the “old” class (those who own the bulk of monetary capital); and to trouble democratically elected authority with ceaseless, censorious infighting. 

Between 1983, when the Supreme Court finally adopted the language of “viewpoint discrimination” and “viewpoint neutrality,” and 1995, a striking decisional pattern emerged. With one, partial exception, whenever the Court vindicated a claim of viewpoint discrimination, it did so to protect speech that coded as politically conservative or for-profit from politically progressive, information-class curation. By contrast, whenever the Court found an absence of viewpoint discrimination, it did so to reassert the authority of public administrators beset by contending information-class factions.

The rise of “the platform economy" scrambled the logic of viewpoint discourse. The platform economy refers to a situation in which a highly skilled faction of the information class rejoins the old class. This union between old- and new-class factions not only operates but owns a set of assets (“the modern public square”) that produces profit primarily by expropriating the value of the information class as a whole. The ideological, political economic, and doctrinal tensions created by this development were exemplified in Moody, as both the states of Florida and Texas and the Supreme Court tried to honor the norm against viewpoint discrimination. The states sought to do so by protecting politically conservative viewpoints from politically progressive curation. The Moody Court sought to do so by protecting for-profit speakers and the federal executive branch from state governments captured by information-class factions deemed – if only for a moment – to be both economically and politically unproductive. The fact that social media platforms are privately owned was not dispositive of this result. To the contrary, history suggests that the ideological and political economic imperatives of viewpoint discourse have tended to drive the Court's demarcation of the boundary between public and private curation. 

--Dan Ernst 

Witt's "Radical Fund"

John Fabian Witt, Yale Law School, has published The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon & Schuster):

In 1922, a young idealist named Charles Garland rejected a million-dollar inheritance. In a world of shocking wealth disparities, shameless racism, and political repression, Garland opted instead to invest in a future where radical ideas—like working-class power, free speech, and equality—might flourish. Over the next two decades, the Garland Fund would nurture a new generation of wildly ambi­tious progressive projects.

The men and women around the Fund were rich and poor, white and Black. They cooperated and bickered; they formed rivalries, fell in and out of love, and made mistakes. Yet shared beliefs linked them throughout. They believed that Amer­ican capitalism was broken. They believed that American democracy (if it had ever existed) stole from those who had the least. And they believed that American institutions needed to be radically remade for the modern age.

By the time they spent the last of the Fund’s resources, their outsider ideas had become mass movements battling to transform a nation.

A luminous testament to the power of visionary organizations and a meditation on the vexed role of money in American life, The Radical Fund is a hopeful book for our anxious, angry age—an empowering road map for how people with heretical ideas can bring about audacious change.

Several book events, including the New York Historical today and Politics & Prose in Washington, DC, on Thursday, are listed on the publisher's website.  In addition, the Supreme Court Historical Society will host an event by Zoom at Noon ET on October 23, and Professor Witt has already discussed the book on the Strict Scrutiny podcast.

--Dan Ernst

Weekend Roundup

• 
  John W. Cairns, professor of Civil Law at the University of Edinburgh, will deliver this year’s Eason-Weinmann Lecture on International and Comparative Law at Tulane Law School on November 20, 2025, at 5 p.m. in the Wendell H. Gauthier Moot Court Room 110.  Professor Cairns’s lecture, "The Civil Code of the State of Louisiana: Context and Contents," will kick off a conference on the bicentennial of the Louisiana Civil Code.  

• Caleb Nelson, UVA Law, asks, Must Administrative Officers Serve at the President’s Pleasure?" and makes an originalist case for why the answer is no.
  

• A notice and recording of Richard Primus's discussion with Noah Feldman of Professor Primus's book, The Oldest Constitutional Question, at HLS on September 25 (Harvard Law Today). 

• UVA Law's notice of G. Edward White's Robert H. Jackson: A Life in Judgment (Oxford University Press). 

• Over at Nursing Clio: David Korostyshevsky on The Strange Case of Henrietta Wiley: A Habitual Drunkard’s Journey Through Guardianship and the Asylum (h/t: HNN).

• "Jamie Raskin (D-MD), former Federal Judge Michael Luttig, and Baltimore University Law Professor Kimberly Wehle discuss the history of the U.S. Constitution at an event hosted by George Washington's Mount Vernon" (C-SPAN).  

• My Georgetown Law colleague John Mikhail lectured on anti-slavery and the Constitution on September 17 as part of Ithaca College’s observance of Constitution Day (Ithacan).  DRE. 

• Last month, Nancy Cott, Harvard University, spoke on “Doctors, Lawyers, and Feminists on the Road to Roe v. Wade" at Vanderbilt Law (Vanderbilt)

• Kurt Lash discusses constitutional debates over slavery before the Civil War (NCC). 

• One of the Drinan Visiting Professors are at the Boston College Law School is Rebecca Horwitz-Willis, a recipient of the Kathryn T. Preyer Award from the American Society of Legal History (BC Law).

• In the series "Made by History" in Time Magazine: Samantha Barbas says that History Explains Why the U.S. Doesn’t Ban Hate Speech.  Bob Crawford on John Qunicy Adams and the "the Gag Rule." 

• 
  
  The Organization of American Historians is sponsoring two webinars on immigration in October.  The first, on denaturalization, will take place at 6pm ET on October 14.  Register here.  The second, on U.S. deportation policies from the Alien Friends Act of 1798 to today, will take place at 6pm ET on October 30.  Register here.  Both webinars are co-sponsored by the Immigration and Ethnic History Society.   

• The October 2025 issue of the newsletter of the Historical Society of the DC Circuit is now available.  

• We ought to have noticed sooner Time Immemorial, the podcast of the Osgoode Hall Society for Canadian Legal History. 

• ICYMI: (Before the government shutdown), visitors to the National Archives react to seeing the entire Constitution (WaPo).  Jillian Foley on America’s Privacy Policy (HNN).  Douglas M. Charles, Penn State, on history repeating itself at the FBI (The Conversation).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Treanor and Uelman on Religious Freedom, Jesuit Mission, and DEI

William Michael Treanor and Amy Uelmen, Georgetown University Law Center, have posted Religious Freedom, Jesuit Mission, and DEI, which is forthcoming in a special issue of the Jesuit Educational Quarterly entitled "Legal Education and the Society of Jesus."

The ability of Jesuit educational institutions to pursue a central part of their mission that of fostering diverse, equitable and inclusive educational environments is under attack. This essay outlines several dimensions of their religiously-grounded mission and the reasons to strongly protect from government interference the rights of Jesuit universities to implement programs and practices that align with DEI values. First, for Jesuit universities, these programs and practices are rooted in a much deeper culture of the more than 2,000-year old Catholic intellectual tradition and the now 500-year old tradition of Jesuit spirituality. Second, drawing on the classic work of Alexis de Tocqueville, Democracy in America, this essay highlights the important role that Jesuit universities play in protecting liberty and democracy. Third, a Jesuit university's control of its curriculum and admissions practices are protected by well-established First Amendment principles, including freedom of religion. In addition, the First Amendment principle of religious freedom also protects Jesuit universities' ability to have race-conscious programs of student support that advance the Jesuit pedagogic mission. The final section of this essay describes some of the curricular and co-curricular innovations and programmatic offerings at Georgetown University Law Center to illustrate how a Jesuit Law School might advance the Jesuit mission of creating an inclusive environment that supports reflective practices and the free exchange of ideas across differences. 

--Dan Ernst 

Weekend Roundup

• The University of Pennsylvania digital history site, Building Inequality: Mapping the spatial and racial inequalities of FHA Section 608 rental housing, 1942-1950, is well worth a visit.

• We have updated information on that inaugural session of "Historicising Jurisprudence," a first-book symposium co-sponsored by the Selden Society and the School of Law, Queen Mary University of London, and co-hosted and co-organised by Maks Del Mar and Michael Lobban.  It will be held on September 30, and devoted to Natasha Wheatley's The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton UP, 2023).  Registration and more information is here.  

• 
  Sara Butler, Ohio State University, discusses her book, Forensic Medicine and Death Investigation in Medieval England (2015) on the Medievialists.net podcast (YouTube).

• The Balkinization symposium continues on Serena Mayeri's Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025). Recent contributions include reflections by Kris Collins and Doug NeJaime.   

• A recording of Dylan Penningroth's talk on his book Before the Movement: The Hidden History of Black Civil Rights at The City Club Forum (ideastream).

• Over at the Jackson List: John Q. Barrett on the appointment of Harold Burton to the U.S. Supreme Court.  

• The historian Joan Wallach Scott recalls the firing of her father, a high school teacher in New York City, during the McCarthy Era  (Boston Review).  

• A concurring opinion in Alan Dershowitz v. CNN cited Samantha Barbas's article,  “New York Times v. Sullivan: Perspectives from History,” to provide historical context for the ongoing debate over defamation law (Iowa Law).

• On Thursday evening, Jonathan Turley, George Washington University Law School, and Michael Klarman, Harvard Law School, debated “Is There a Constitutional Crisis? How Would We Know?” at Colgate University.

• Jill Lepore's We the People had a substantial presence on the internet this week.  Professor Lepore's op-ed in the NYT.  Reviews in The Guardian and the LA Times.  Her argument that originalism "killed" the Constitution in The Atlantic; to which the National Review dissents.

• ICYMI: The Desegregation of Local 53 in New Orleans (1969) (BlackPast). The 18th-century legal case that changed the face of music copyright law (WIPO).  John Yoo on the long history of presidential discretion (Law & Liberty).  The Heritage Foundation's Guide to the Constitution.  The entire Constitution is on display for the first time in US history (Smithsonian; WTOP; USA9).  The Georgia Historical Society displayed its own rare copy, once owned by the Georgia’s signer Abraham Baldwin (TOC11).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Barbas on Beauharnais

Samantha Barbas, University of Iowa College of Law, has posted The Story of Beauharnais v. Illinois, which is forthcoming in the Journal of Free Speech Law:

In 1952, the U.S. Supreme Court issued its landmark First Amendment decision in Beauharnais v. Illinois, upholding an Illinois hate speech law. Beauharnais, involving a white supremacist “hate group” leader in Chicago, was the Supreme Court’s first encounter with racist speech. The Illinois statute, enacted in 1917, was one of several hate speech or “group defamation” laws that existed in the United States during the first half of the twentieth century. Commentators believed that the Supreme Court’s approval of the Illinois statute would lead other jurisdictions to enact hate speech laws. Yet Beauharnais facilitated the demise of hate speech laws. This article tells the story of Beauharnais v. Illinois and explains why the Supreme Court’s ruling helped bring about the end of hate speech laws in America.

--Dan Ernst 

Palau-McDonald on Farrington v. Tokushige

MJ Palau-McDonald, University of Hawai’i at Manoa--William S. Richardson School of Law, has posted Farrington v. Tokushige: Language & Power in Hawai’i:

In Farrington v. Tokushige (1927), the U.S. Supreme Court struck down on Fifth Amendment grounds a series of laws enacted by the Territory of Hawai'i to control and ultimately eradicate private Japanese language schools. Legal commentary on Tokushige is sparse. The case is often characterized as a straightforward application of Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923). Together, Tokushige, Pierce, and Meyer are often cast as the Court’s public education chapter of the Americanization period. However, viewing Tokushige as a simple extension of Meyer and Pierce alienates the case from its historical context of white elites’ attempts to maintain political and economic control in the Territory in the face of a growing population of Nisei (U.S.-born children of first-generation Japanese immigrants), who, unlike their parents, were U.S. citizens with the right to vote. In this way, the Territory’s anti-Japanese movement was distinct from concurrent Japanese exclusion initiatives in California and Washington, which revolved around attempts to prevent Japanese land ownership and economic ascension, though the fear of the “yellow peril” was the fulcrum around which these movements metastasized. Through an examination of the social and legal history behind Tokushige, this article reinserts the significant racial dynamics that undergirded the events, the cultural depictions, and the legal justifications for the Japanese school control legislation that was lost in the Court’s sterilized decision. It also resituates Tokushige within the context of U.S. colonization and the forces that justified control over Hawai’i’s politics, land, and culture. The case’s unique history is inextricably intertwined with the establishment and maintenance of U.S. hegemony in the Pacific. Recontextualized, Tokushige implicates core questions of power that are increasingly relevant today, including who has access to political and economic power and who creates the conditions for access to that power.

--Dan Ernst 

Dabhoiwala's "What Is Free Speech?"

Fara Dabhoiwala, Princeton University, has published What Is Free Speech? The History of a Dangerous Idea (Harvard University Press):

Every premodern society, from Sumeria to China to seventeenth–century Europe, knew that bad words could destroy lives, undermine social order, and create political unrest. Given the obvious dangers of outspokenness, regulating speech and print was universally accepted as a necessary and proper activity of government. Only in the early 1700s did this old way begin to break down. In a brief span of time, the freedom to use words as one pleased was reimagined as an ideal to be held and defended in common.

Fara Dabhoiwala explores the surprising paths free speech has taken across the globe since its invention three hundred years ago. Though free speech has become a central democratic principle, its origins and evolution have less to do with the high-minded pursuit of liberty and truth than with the self-interest of the wealthy, the greedy, and the powerful. Free speech, as we know it, is a product of the pursuit of profit, of technological disruption, of racial and imperial hypocrisy, and of the contradictions involved in maintaining openness while suppressing falsehood. For centuries, its shape has everywhere been influenced by international, not just national, events; nowhere has it ever been equally available to women, the colonized, or those stigmatized as racially inferior.

Rejecting platitudes about the First Amendment and its international equivalents, and leaving no ideological position undisturbed, What Is Free Speech? is the unsettling history of an ideal as cherished as it is misunderstood.

Here is a recording of Professor Dabhoiwala's recent book talk at Politics and Prose.

--Dan Ernst

Barbas on the Absence of American Hate Speech Laws

Samantha Barbas, University of Iowa College of Law, has posted How American Civil Rights Groups Defeated Hate Speech Laws, which is forthcoming in the Journal of Free Speech Law:

In the United States, “hate speech” is generally protected by the First Amendment. Hate speech is considered to be “free speech” unless it provokes imminent violence or constitutes a “true threat” or “fighting words.” No other nation protects the right to express hate so vigorously.

This article explains one potential reason for the absence of hate speech laws in America –the historic opposition of minority civil rights groups to hate speech laws. Since the beginning of the twentieth century, civil rights groups such as the National Association for the Advancement of Colored People (NAACP) and the American Jewish Committee spoke out against hate speech laws and campaigned to defeat proposed hate speech laws on the theory that such laws were ineffective in curtailing hate speech, and that limitations on freedom of speech would hinder the efforts of minority groups to achieve racial and religious equality. These civil rights groups concluded that the most effective way to reduce racial and religious hatred was to combat hate speech through counter-speech and education. This article tells the story of how and why civil rights organizations opposed hate speech laws, and how that opposition changed American law and public policy.

--Dan Ernst

Weekend Roundup

• Northwestern Law has a post on the grants Ajay K. Mehrotra received in support of his book project, “American Outlier: Economic Inequality and the U.S. Historical Resistance to National Consumption Taxes.”  On that NEH grant, though, see this and this. 

• Columbia Law's notice of new faculty member and legal historian Kate Redburn.     

• 
  Congratulations to Laura Flannigan, University of Oxford, for winning the Royal Historical Society's first book prize for Royal Justice and the Making of the Tudor Commonwealth, 1485–1547 (Cambridge University Press, 2023).

• Balkinization has completed its symposium in honor of Ken Kersch.  Contributors were Jack Balkin, Rogers M. Smith, Mark A. Graber, Sanford Levinson, George Thomas, Mary Ziegler, James E. Fleming, Linda C. McClain, Carol J. Nackenoff, Logan E. Sawyer III, and Dennis J. Wieboldt III. 

• Also over at Balkinization, Gerard Magliocca ponders "The Mystery of Birch Bayh's Amicus Brief in Reed v. Reed."   

• Samantha Barbas, Iowa Law, recently spoke on the history of freedom of speech and press at the Aspen Ideas Festival.     

• Over three days in October, Maggie Blackhawk, NYU Law, will deliver the 2025 Rothbaum Distinguished Lecture in Representative Government at the University of Oklahoma.  Professor Blackhawk's topic is Colonial Administration: Empire, Civilization, and the Making of Political Science.

• "The Margery Hunter Brown Indian Law Clinic at the University of Montana has embarked on an ambitious project to create the Indian Law Portal – a comprehensive digital archive of legal documents from each of Montana’s tribal nations" (University of Montana).  

• "Preliminary report into Indian boarding school history lays the groundwork for dismantling policies that have harmed Indigenous people" (Washington State Attorney General).

• “Becoming Thurgood: America’s Social Architect,” a new one-hour documentary, premieres on Tuesday, September 9, on PBS.  "What sets this film apart is that for the first time, [Thurgood] Marshall’s story is told in his own words—drawn from a rare eight-hour oral history recording" Chicago Defender).

• Time's Made by History:  Ryan LaRochelle and Kate Flynn say that History Shows us Why a Non-Partisan U.S. Military is Essential.

• At Inside Higher Ed: Michael Bannerjee (UC Berkeley) draws on the 1819 Dartmouth College case to argue that "Universities Need to Go Corporate"; doing so could "preserve institutional autonomy and defend academic freedom." 

• How the Heritage and the US Department of Education would have us observe the 250th. 

• The Institute of Historical Research has posted online its archive of interviews with UK historians, including Christopher Hill, Eric Hobsbawm, E P Thompson, Dorothy Thompson, and Maurice Cowling (History and Policy). 

• The comments on that proposal of the American Bar Association to double the number of required experiential credit hours from six to twelve have been posted online and are summarized here.  Mine is one of them.  DRE 

• The July 2025 newsletter of the Historical Society of the D.C. Circuit is now available here.

• ICYMI:  Brandan Buck on the Lost Liberalism of America First (Cato). Noria Doyle on How Plessy v. Ferguson sparked early civil rights activism from Milwaukee’s Black community in 1896 (Milwaukee Independent).  Alexis Coe, American History columnist for the NYTBR, lists some books to read on the US Supreme Court in "this moment of constitutional crisis" (NYT).  The rare book collection of the the Indiana Supreme Court Law Library (Indiana Lawyer).  Justice Jackson's inclusive original public meaning (Slate).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Watkins on BYU's Moral Policing

Grace Watkins, a recent graduate from the Yale Law School and a DPhil student in History at Oxford University has published her note, Piety Police, in the Yale Law Journal.  She received the Kathryn T. Preyer Scholars Award of the American Society for Legal History for the paper.

Religiously affiliated universities are permitted to maintain their own private police under the rationale that these departments serve an educational, rather than religious, mission. This Note calls that rationale into question by uncovering the history of the Brigham Young University Police Department’s (BYUPD’s) morals policing, which blurred the lines between the enforcement of the law and the school’s religious Honor Code. Drawing on extensive archival research and previously unexamined legal materials, this history reveals how the BYUPD waged vice- and sexual-policing campaigns that extended far beyond campus borders.

The Note argues that BYU’s religious affiliation shaped the methods, priorities, and powers of its campus police. In the 1960s, the BYUPD enlisted students and professors to assist with undercover drug operations, resulting in haphazard investigative tactics that disrupted campus life. During the 1970s, university administrators encouraged the BYUPD to aggressively police sexual morality. In response, campus officers used undercover student agents to conduct surveillance and sting operations targeting gay men living in Provo. Then, following a significant expansion of the BYUPD’s statutory authority in 1979, local residents reported that officers were using their law-enforcement powers to conduct Honor Code investigations off campus. In the 2010s, similar concerns resurfaced when it was discovered that a BYUPD officer had shared confidential police reports with administrators to punish victims of sexual violence for Honor Code violations related to their assaults.

Despite repeated attempts to separate the BYUPD’s law-enforcement and student-discipline functions, misconduct continued. This cycle suggests that the BYUPD’s religious and police duties are inextricably entangled. These findings provide a cautionary tale as more religious universities—and, more recently, megachurches—establish their own law-enforcement agencies nationwide. The Note concludes by mapping the legal landscape of this growing category of private police and reflecting on the inherent risks posed by departments acting under the authority of both church and state.

--Dan Ernst