Publication Title
Journal of Free Speech
Volume
6
Page
757
Year
2025
Abstract
Many of the Supreme Court’s most controversial free speech decisions involve state laws. In Gitlow v. New York, the Court assumed that the First Amendment’s guarantee of freedom of speech applied directly against the states via the Fourteenth Amendment, a doctrine today referred to as incorporation. Yet there is reason to doubt incorporation is correct as a matter of the original meaning of the Fourteenth Amendment. Indeed, much of the historical evidence involves debates over the freedom of speech, but none of the historical actors seemed to think the First Amendment applied against the states. This short essay evaluates the historical evidence relating to the freedom of speech and incorporation of the Bill of Rights and considers what a more historically grounded analysis in free speech cases might look like.
Recommended Citation
Ilan Wurman, Free Speech and Incorporation: A Reassessment, 6 J. Free Speech 757 (2025), available at https://scholarship.law.umn.edu/faculty_articles/1180.
Rights
http://rightsstatements.org/vocab/InC/1.0/
