Erickson and Bunker on The Jurisprudence of Tradition: Constitutional Gaslighting and the Future of First Amendment Free Speech Doctrine @WidenerJournal @csuf @UofAlabama

Emily Erickson, California State University, Fullerton, and Matthew D. Bunker, University of Alabama, have published The Jurisprudence of Tradition: Constitutional Gaslighting and the Future of First Amendment Free Speech Doctrine at 29 Widener L. Rev. 139 (2023). Here is the abstract.

When the U.S. Supreme Court had handed down its transformation of Second Amendment rights in 2022’s New York State Rifle and Pistol Assoc., Inc. v. Bruen, it did so using a methodology that resembles originalism, but is in fact a version of traditionalism. A number of cases decided that term make clear that the Court’s conservative supermajority intends to work dramatic change upon the constitutional landscape, with this ‘history and tradition’ methodology at the helm. And Bruen signals another ominous possibility: In Bruen’s majority opinion, Justice Clarence Thomas drew a misleading parallel between that case’s traditionalist method and First Amendment’s free-speech doctrine, suggesting that the two were congruent. This conflation of Second Amendment and First Amendment methodology raises concerns as to the majority’s future intentions toward free speech doctrine. If the majority plans to reconfigure free-speech law in Bruen’s image, the future of free expression in the United States looks grim. This article first explores traditionalism as a constitutional method, distinguishing it from originalism. Next, it analyzes the Bruen decision and unpacks its methodology, as well as its conflation of gun rights and free speech. It then turns to First Amendment free speech doctrine, examining the ostensible traditionalism already embedded there, as well as the paucity of actual First Amendment tradition prior to the 20th century. After offering some predictions about how a Bruen-inspired free speech jurisprudence might alter existing law, it briefly describes post-Bruen developments, then presents some concluding perspectives on this deeply troubling potential shift in constitutional law.

While the article is not available online from the journal, it is available on LEXIS and WESTLAW.