Some believe that Bruen decision may mark a larger shift toward historicism, and historical regulatory practice, in constitutional interpretation. In an upcoming article in the Duke Journal of Constitutional Law and Public Policy, Clay Calvert and Mary-Rose Papandrea consider what the Court’s rejection of means-ends scrutiny in Bruen signals for other areas of constitutional law—namely, free speech challenges under the First Amendment.
The End of Balancing? Text, History & Tradition in First Amendment Speech Cases after Bruen, 18 Duke J. of Const. L. & Pub. Pol’y (forthcoming 2023)
This Article examines the potential impact on First Amendment free-speech jurisprudence of the U.S. Supreme Court’s increasing reliance on text, history, and tradition in 2022 decisions such as New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court embraced a new test for examining Second Amendment cases. It concentrates on whether there is a historical tradition of regulating the conduct in question, and it eliminates any use of constitutionally common means-end standards of review such as strict and intermediate scrutiny. Those two scrutiny standards often guide the Court’s free-speech decisions. The Bruen majority, however, asserted that its novel Second Amendment test eliminating their usage actually “comports” and “accords with” how the Court protects free-speech rights. This Article initially illustrates how that assertion is partly correct but largely inaccurate. It then explores critical problems that likely would arise were the Court to impose its text, history, and tradition methodology from Bruen on First Amendment speech cases. In doing so, the Article addresses how this originalistic approach might affect the continued viability of the Court’s actual malice standard in defamation law adopted nearly sixty years ago in New York Times Co. v. Sullivan.