Freedom of Speech as a Cultural Holdover

Abstract

This Article suggests that according generally preferred constitutional status to speech crucially depends on the vitality of certain underlying cultural practices. It has become apparent that the presumably crucial such underlying cultural practices have evolved in such a way that the distinctive constitutional status of speech can no longer be sufficiently justified. As the relevant costs of free speech have generally tended to increase, the relevant positive values and cultural institutions underlying the institution of constitutional freedom of speech have gradually tended to erode or recede.