In United States v. Alvarez, the US Supreme Court ruled that an official of a water district who introduced himself to his constituents by falsely stating in a public meeting that he had earned the Congressional Medal of Honor had a First Amendment right to make that demonstrably untrue claim. Audience members misled by the statement might well be considered to have a First Amendment interest in not being directly and knowingly lied to in that way. Other members of the community might be thought to have a First Amendment interest in public officials such as Xavier Alvarez telling the truth about their credentials and experiences. Nevertheless, as both the plurality and the concurring justices who together formed the majority in Alvarez viewed the case, it was the liar’s interest in saying what he wished that carried the day. Why is that? Crucial to answering this question is whether ‘the freedom of speech’ that the First Amendment tolerates ‘no law abridging’ is understood to be primarily speaker-centered, audience-centered, or society-centered.

This chapter explores the historical roots and purposes of the Free Speech and Freedom of the Press Clauses of the First Amendment. It shows that the most of the early conflicts in this area concerned press freedoms. Disagreements over these issues came to a head over the Sedition Act of 1798, which was used by the Federalist Party to jail its Republican opponents. Ultimately, out of this conflict the Republicans articulated a new model of citizenship, rooted in principles of popular sovereignty, which remains central to our system of government today. Freedom of speech, on the other hand, played a very limited role in early history. Regardless of its humble origins, however, the Framing generation agreed that Free Speech, like Freedom of the Press, was an essential element of democratic government. Unfortunately, these rights have often been ignored by our government and the judiciary during times of stress such as the Red Scare and the McCarthy era. Today, however, thanks to the influence of pioneering arguments by Justices Oliver Wendell Holmes, Jr. and Louis Brandeis, there is broad agreement that these rights are essential to democracy and so must be protected.