Modern free speech theory is dominated in the courts and the academy alike by a constructivist style of reasoning: it posits a few axiomatic purposes of speech and from these deduces detailed rules of law. This way of thinking can make the law blind to the actual consequences of legal rules and damage both individual liberty and democracy. I develop this claim through a critique of the work of Martin Redish, who has developed the most sustained and sophisticated constructivist theory of free speech. Free speech constructivism is not the only way to understand the First Amendment. It is a fairly recent development, emerging only in the 1970s. The idea of free speech, on the other hand, dates back to Milton’s arguments in the 1640s. This Article identifies the pathologies of constructivism and recovers an older, more attractive free speech tradition.
