Few doctrines in American constitutional law provoke as much debate as originalism. This interpretive philosophy—which holds that the Constitution’s meaning was fixed at the time of its ratification—directly shapes how courts, lawmakers, and citizens approach the most contentious issues of free expression and government censorship. Understanding originalism’s influence on these debates is essential for anyone who wants to grasp the trajectory of First Amendment jurisprudence in the twenty-first century.

Understanding Originalism: Core Principles and Variants

Originalism is not a monolithic theory but a family of interpretive approaches that share a central commitment: the Constitution should be understood according to its original meaning at the time it was adopted. The two main branches are original intent, which asks what the framers personally intended the text to accomplish, and original public meaning, which seeks the ordinary meaning that the ratifying public would have attributed to the words. The latter, championed by Justice Antonin Scalia, has become the dominant form in modern jurisprudence.

Originalists argue that this approach constrains judicial discretion, prevents judges from imposing their personal values, and preserves democratic accountability. As the late Justice Scalia famously remarked, the Constitution is a “dead” document—but dead in the sense that its meaning does not change unless formally amended, providing stability and predictability. Critics, however, contend that originalism is often indeterminate because historical evidence can be sparse or conflicting, and that it fails to address societal transformations the framers could not have imagined.

Key figures in the originalist movement include not only Scalia but also Robert Bork, Randy Barnett, and more recently, Justice Neil Gorsuch and Justice Clarence Thomas. Their writings and opinions have shaped the modern understanding of free speech under an originalist framework. For a scholarly overview, see the Stanford Encyclopedia of Philosophy entry on originalism.

The First Amendment Through an Originalist Lens

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” To an originalist, the key question is what “freedom of speech” meant in the late eighteenth century. That understanding was not an absolute right to say anything anywhere, but a narrower concept rooted in English common law and colonial practice.

At the time of ratification, the English common law generally prohibited prior restraints on publication (licensing systems) but allowed punishment after publication for seditious libel, blasphemy, and obscenity. However, many American states had already rejected aspects of English seditious libel law. The 1798 Sedition Act, passed by a Federalist-controlled Congress, criminalized false, scandalous, and malicious statements against the government. This act was vigorously opposed by Thomas Jefferson and James Madison, who argued it violated the First Amendment. Madison’s Virginia Resolution contended that the freedom of speech and press meant no prior restraint and that truth was a defense against charges of libel—positions that later became foundational to American free speech doctrine.

Originalists who focus on the founding period often point to Madison’s views as the best evidence of original meaning. They argue that the First Amendment was primarily designed to protect political speech and to prevent government censorship in the form of prior restraints and prosecutions for criticizing public officials. However, that protection was not understood to cover everything: certain categories of speech, such as obscenity, blasphemy, and fighting words, were considered outside the boundaries of protected expression.

Free Speech Rights in Practice Under Originalism

Originalism’s impact on free speech rights is most visible in Supreme Court decisions that rely on historical analysis. In District of Columbia v. Heller (2008) and New York State Rifle & Pistol Association v. Bruen (2022), the Court used originalist reasoning to uphold gun rights. While not a free speech case, the method is instructive: the Court examined the historical understanding of the right and then required modern regulations to be consistent with that understanding. In the speech context, similar reasoning appears in cases like United States v. Stevens (2010), where the Court struck down a law banning depictions of animal cruelty, refusing to create a new categorical exception to the First Amendment based on modern sensibilities.

Originalist judges tend to be skeptical of new categories of unprotected speech, such as “hate speech” or “incitement” broader than the Brandenburg v. Ohio (1969) standard. They argue that the historical understanding of “freedom of speech” did not include an exception for offensive or hateful ideas—only for speech that directly caused imminent lawless action or fell into defined historical exceptions like obscenity or defamation. This view leads to strong protection for provocative and unpopular speech.

Another area where originalism matters is the doctrine of incorporation—whether the First Amendment applies to state and local governments. The original Constitution only constrained the federal government. The Fourteenth Amendment, ratified in 1868, was later interpreted to apply the Bill of Rights to the states. Originalists debate whether the framers of the Fourteenth Amendment intended to incorporate the entire Bill of Rights or only certain privileges and immunities. The Supreme Court’s incorporation of free speech rights via the Due Process Clause has been largely accepted, but some originalists, like Justice Thomas, have argued for alternative bases, such as the Privileges or Immunities Clause, which could alter speech protections in subtle ways.

Censorship and Originalist Views: Government versus Private Actors

Originalism’s influence on debates about censorship is profound, especially as the line between government and private censorship blurs in the digital age. The First Amendment restricts only government action—not private companies. Thus, a social media platform’s decision to remove content is not “censorship” in the constitutional sense. Originalists emphasize this distinction, arguing that the government cannot force platforms to carry speech (as some state laws have attempted) because that would interfere with the platforms’ own free speech rights.

However, when the government itself censors—whether by prosecuting leakers, restricting protests, or compelling speech—originalist analysis turns to history. For example, in Schenck v. United States (1919), Justice Oliver Wendell Holmes articulated the “clear and present danger” test for evaluating restrictions on speech during wartime. While not an originalist opinion (Holmes was a pragmatist), the case illustrates how courts have historically balanced free expression against national security. Originalists would ask: what was the original understanding of the government’s power to suppress speech in times of crisis? The founding generation tolerated the Sedition Act, but they also vigorously opposed it—showing that the original meaning was contested.

Modern originalist scholarship often argues that the government’s power to censor is extremely limited. For instance, the historical exception for obscenity was narrow and involved material appealing to a “prurient interest,” not all sexually explicit content. Similarly, defamation was restricted by the requirement that the statement be false and harmful to reputation. Originalists are typically reluctant to expand these exceptions to cover new categories like “fake news” or “misinformation,” because there is no historical warrant for such broad government control over truth. For a discussion of the clear and present danger test and its evolution, see the Oyez summary of Schenck v. United States.

Historical Exceptions to Free Speech

Originalists recognize that the First Amendment was not understood to protect all speech. The founding era accepted certain common-law categories as outside the protection of “freedom of speech”:

  • Obscenity: speech that is lewd, lascivious, or pornographic, as judged by community standards and lacking serious artistic or scientific value.
  • Fighting words: personal insults directed at an individual that inherently incite an immediate breach of the peace. This exception was recognized in Chaplinsky v. New Hampshire (1942) but has been narrowly applied.
  • Defamation: false statements that harm reputation. Originalists would argue that the actual-malice standard introduced in New York Times Co. v. Sullivan (1964) went beyond the original understanding, which allowed truth as a defense but did not require proof of knowing falsehood for public officials.
  • Incitement to imminent lawless action: a modern refinement of the earlier “clear and present danger” test, now governed by the Brandenburg standard (1969).

These exceptions are not unlimited, and originalists tend to read them narrowly to avoid government overreach. The result is a strong presumption against censorship, even of offensive or harmful speech, unless history clearly shows that such speech was punishable at the time of the founding.

Modern Challenges: Digital Speech, Hate Speech, and Misinformation

Originalism faces its stiffest test when applied to contemporary issues that the framers never contemplated. How can a fixed eighteenth-century meaning govern social media platforms, encrypted messaging, and global online communities? Originalists respond that principles, not specific technologies, are what endure. The principle of no prior restraint applies to blocking a tweet just as it applies to blocking a newspaper. The principle that the government cannot punish criticism of public officials applies to a YouTube video as much as to a pamphlet.

Yet critics argue that the framers’ understanding of “speech” did not include algorithmic amplification, anonymous trolling, or coordinated disinformation campaigns. These phenomena raise questions that originalist analysis cannot easily resolve by looking to history. For example, should a government law requiring platforms to remove foreign election interference be considered censorship? If the original meaning of the First Amendment was primarily about preventing prior restraints, then a law that requires post-publication removal of certain content might be permissible. But if the original meaning encompassed a broader freedom from government control over the press, then such mandates could violate the separation of press and government.

The debate over hate speech regulation is another flashpoint. In most Western democracies, hate speech laws restrict expressions that incite hatred or discrimination. The United States, under a strong free speech tradition, has no general hate speech prohibition—largely due to originalist and textualist reasoning. The First Amendment says “no law … abridging the freedom of speech,” which originalists read as categorical, subject only to narrow historical exceptions. As a result, speech that is racist, sexist, or otherwise offensive is constitutionally protected unless it falls into one of the recognized categories. This position distinguishes the United States from countries like Germany, Canada, and the United Kingdom, which balance free speech against other values.

Misinformation, particularly about public health and elections, has prompted calls for government action. Originalists generally resist such regulation, arguing that the government must not become the arbiter of truth. Instead, the remedy for bad speech is more speech—a principle rooted in the marketplace of ideas envisioned by John Milton and John Stuart Mill, and echoed in Justice Holmes’s famous dissent in Abrams v. United States (1919). That dissent, though not originalist in method, reflects the founding generation’s skepticism of government censorship. For a modern perspective on how originalism applies to internet speech, see this Lawfare article on originalism and the internet.

The Role of Private Platforms

A critical nuance in modern censorship debates is the distinction between government and private action. When Twitter or Facebook removes content, that is not a First Amendment violation because the amendment binds only the government. Originalists argue that the government should not coerce platforms into taking down speech—for example, through threats of antitrust action or communications decency act reforms—because that would effectively amount to government censorship via intermediary. At the same time, platforms are free to exercise their own editorial judgment, consistent with their own free speech rights. This has led to tensions: some conservatives argue that platforms are censoring conservative viewpoints, but originalist analysis suggests that any government remedy would be unconstitutional unless it addresses the platforms’ own constitutionally protected choices.

Critiques and Alternatives to Originalist Free Speech Interpretation

Originalism’s approach to free speech is not without vigorous criticism. Living constitutionalists argue that the Constitution’s meaning must evolve to meet new circumstances, and that the framers themselves intended for flexible interpretation. They point out that the First Amendment has been applied to protect forms of expression the founders could not have imagined, such as motion pictures, sound recordings, and computer code. For living constitutionalists, the core value of free speech—individual autonomy and democratic self-governance—should guide interpretation, not a fixed historical meaning.

Pragmatists criticize originalism for being too rigid and for ignoring the real-world consequences of decisions. In the context of censorship, they argue that a purely historical approach might protect harmful speech that undermines democratic processes, such as deepfakes or viral disinformation. They favor a balancing test that weighs the government’s interest against the speech restriction, rather than a categorical historical exception.

Another alternative is textualism, which shares originalism’s focus on the text but does not necessarily require the historical meaning to be the same as the modern one. Textualists look at the plain meaning of the words as understood today, which can differ from the original public meaning. Justice Scalia, a textualist and originalist, often conflated the two, but later justices, like Justice Kagan, have embraced a more flexible textualism that sometimes diverges from originalism.

Despite these critiques, originalism remains a powerful force in American jurisprudence. Its emphasis on historical evidence forces courts and litigants to engage seriously with the founding era, which often reveals that modern free speech protections are broader than the original understanding. For instance, the Supreme Court’s decision in Citizens United v. FEC (2010), which struck down limits on corporate electioneering spending, was grounded in a textualist-originalist reading of the First Amendment. While controversial, that decision illustrates how originalism can extend free speech protections to new actors and contexts.

Historical Ambiguity and the Limits of Originalism

One of the most persistent criticisms of originalism in the free speech area is that the historical record is often ambiguous. The founding generation disagreed sharply about the scope of free expression—the Alien and Sedition Acts controversy being the prime example. Originalists must decide which historical sources to privilege: the writings of James Madison, the common law treatises of William Blackstone, or the practices of state legislatures. Different originalists can reach different conclusions about the original meaning of the First Amendment, leading to what critics call “originalism with a liberal or conservative face.”

For example, Justice Thomas, an avowed originalist, has argued that the First Amendment’s Free Press Clause originally protected only the press as an institution, not individual speakers. This narrow reading would have radical implications for bloggers and independent journalists. Most originalists reject that view, but the example shows how historical inquiry can produce divergent results. For an analysis of originalist methodology in free speech cases, see this article from the Harvard Law Review on originalism and free speech.

Moreover, originalism must contend with the incorporation of the First Amendment against the states. The Fourteenth Amendment was ratified in 1868, well after the original understanding of the First Amendment. What “freedom of speech” meant to the ratifiers of the Fourteenth Amendment might differ from the 1791 meaning. Some originalists argue that the relevant historical context should be 1868, not 1791. This complicates the analysis further, as the post-Civil War generation had their own experiences with censorship during the conflict and Reconstruction.

Conclusion: Originalism’s Enduring Impact on Free Speech and Censorship

Originalism profoundly shapes American debates on free speech and censorship by anchoring constitutional interpretation to historical understandings. Its proponents argue that this approach provides stability, objectivity, and fidelity to the democratic process. In practice, originalist judges tend to be strong defenders of free speech, skeptical of new exceptions proposed by modern legislatures or interest groups. The result is a robust protection for controversial, offensive, and even dangerous speech—so long as it does not fall into narrow, historically recognized categories.

Yet originalism is not a panacea. The digital age, with its complex information ecosystems and powerful private platforms, tests the limits of eighteenth-century principles. Critics contend that an exclusively historical approach can leave society vulnerable to harms that the framers never imagined, such as viral misinformation that undermines public health or electoral integrity. Originalists respond that the remedy for bad speech is more speech, not government censorship, and that the First Amendment’s original meaning is capacious enough to protect the marketplace of ideas.

Ultimately, the debate over originalism and free speech is a debate about the nature of the Constitution itself: is it a fixed contract to be interpreted based on its historical meaning, or a living document that adapts to new circumstances? Both sides have compelling arguments, and the Supreme Court’s decisions will continue to reflect the tension between originalist and non-originalist methods. As new technologies emerge and societal values evolve, the question of how originalism affects free speech and censorship will remain at the heart of American constitutional law. For a broader exploration of free speech in the modern era, see this BBC article on the state of free speech in the United States.

What is clear is that originalism has set the terms of debate. Even its opponents must engage with historical arguments, whether they agree with the method or not. The ongoing challenge for all interpreters—originalists and non-originalists alike—is to find a balance between respecting the Constitution’s foundational commitments and addressing the realities of a world vastly different from the one that produced the First Amendment. That balance will determine the future of free expression in America.