The judge pointed to two areas where the Supreme Court has shifted things towards a history-and-tradition test in recent years: the 2019 case American Legion v. American Humanist Association, which involved the Establishment Clause, and New York State Rifle & Pistol Association v. Bruen, which focused on the Second Amendment. The former involved a challenge to a war monument shaped like a large crucifix on public land in Maryland; the latter sought to overturn New York’s system for obtaining a concealed-carry license.
History-and-tradition tests for constitutional rights constrain the government’s ability to enact laws and policies based on what was acceptable in a particular time and place—in most cases, early 19th-century America. In the Second Amendment context, Bruen’s history-and-tradition test expanded the individual right to bear arms because states imposed far fewer restrictions on gun ownership and possession at the time. But in the First Amendment context, as Kacsmaryk approvingly noted, a history-and-tradition test would significantly limit free-speech rights since founding-era Americans were far less permissive than their modern descendants.
Said historical analysis reveals a Free Speech ecosystem drastically different from the ‘expressive conduct’ absolutism of Plaintiffs’ briefing: (1) the Founders focused on ‘prior restraints’ of publication – specifically, political pamphlets, (2) draft Free Speech Clauses focused on protecting the ‘right to speak, to write, or to publish their sentiments,’ (3) Blackstone treatises extolled ‘freedom of thought’ and recognized a police power ‘to censure licentiousness,’ (4) the Comstock Act of 1873 prohibited the mailing of ‘obscene, lewd or lascivious’ materials, and (5) Joseph Story’s Commentaries defined the Free Speech Clause as protecting the ‘right to speak, write, and print … opinions upon any subject whatsoever, without any prior restraint,’ but not the right to ‘injure any other person in his rights, person, property, or reputation’ or ‘to disturb the public peace.’
That “drastically different” ecosystem, of course, is no longer the dominant framework with which courts view First Amendment issues. What counts as “licentiousness” or “obscene, lewd, or lascivious”? The Supreme Court has largely abandoned that question—and most obscenity laws with it—since Miller v. California in 1973. When does something “injure any other person in his rights, person, property, or reputation”? The justices have set an extremely high threshold for libel cases since New York Times v. Sullivan in 1964. When does something “disturb the peace”? Since the 1969 ruling in Brandenburg v. Ohio, a speaker does not fall under the First Amendment unless they are inciting “imminent lawless action.”