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.
