The U.S. Supreme Court increasingly leverages a rigid interpretation of the Free Speech Clause to strike regulations that address campaign financing, health care warnings, tax disclosures, collective bargaining agreements, and consumer protections. History has become little more than a slogan that the majority periodically invokes but seldom accurately evaluates. That lack of nuance augments the justices’ authority to articulate absolutist-sounding rules to the detriment of legislatures’ exercise of traditional governmental functions. Jurists would do better to rely on a more proportionate and less categorical approach to decide whether laws impose direct or peripheral burdens on communications. The level of safeguards enjoyed by expressions should be gauged by their value to political self-determination, personal development, or informational contribution. The degree of protections that speech enjoys should be balanced against countervailing government interests, alternatives available to speakers, fit between law and public ends, and relevant history.

Central to the American tradition of expanding protections for controversial speech is a robust distrust of potential censors to make reasonable judgments about what speech should be suppressed. But the arguments for a more restrictive approach to speech often implicitly or explicitly evince much greater trust in the likely decision-makers who will be entrusted with the authority to suppress speech. Whether restricting Communist speech, antiwar speech, “hate speech,” or “disinformation,” the case for empowering some authority figure—such as campus administrators, technology company employees, or government officials—builds on an assumption that those authority figures will be motivated by good intentions and be endowed with good judgment to make reasonable distinctions between the speech that should be tolerated and the speech that should not. Such confidence would often seem to be misplaced.