Free Speech and Constitutional Transformation

This case] raises questions of grave importance transcending the local interests involved in the particular action."So wrote Chief Justice Charles Evans Hughes in Near v. Minnesota,1 the second Supreme Court case to protect free speech under a conscious and articulated theory of the First Amendment.In an extraordinary series of opinions throughout the 1930s, Hughes and Justice Owen Roberts went on to author a First Amendment jurisprudence based upon the centrality of free speech in a democratic government.Perhaps because the Warren Court offered such admirable support for free speech during the civil rights era, perhaps because Hughes and Roberts never matched the grand rhetoric of Brandeis in Whitney v. California2 or Brennan in New York Times v. Sul/ivan,3 or perhaps because FOR's court-packing plan gave a special historical prominence to the 1930s commerce clause cases, the First Amendment decisions of the Hughes Court receive scant attention in modem scholarship.Two central lessons are obscured by this neglect: first, that a coherent First Amendment tradition honoring the centrality of rich public debate begins as early as the 1930s, and second, that the main constitutional achievements of the 1930s Court-newly legitimate national economic regulation and incipient protection of minorities under the Fourteenth Amendment-are Siamese twins, born of the First Amendment cases and linked by the triumph of national interests over "local interests" like those alluded to in Near.The first lesson of the Hughes Court First Amendment cases concerns the popular sense of how long courts have understood and protected free speech.If there is a popular vision of the Court's free speech tradition, it runs something as follows: free speech issues • Law Clerk, 1992-93, to the Honorable Walter