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Unpublished Paper
The Conspiracy Origin of the First Amendment
ExpressO (2013)
  • Steven R Morrison
Scholars and jurists have misunderstood the import of three seminal 1919 First Amendment cases—Schenck v. United States, Frohwerk v. United States, and Abrams v. United States—as primarily free speech cases. They are better understood as free assembly cases. This is important for two reasons. First, individuals’ speech has the intended First Amendment effect only when speakers combine into groups. Second, the 1919 cases were the beginning of substantive First Amendment law, and so have resulted in a First Amendment jurisprudence that favors individual rights over group rights. This is a constitutional and normative mistake. Combined with the first reason, the preference for individual speech rights hinders social change that is supposed to be supported by robust First Amendment rights. The application of criminal conspiracy law in the period from 1918 through 1927 was the primary method by which the government pursued dissident groups. Conspiracy law, of course, is not concerned with lone street corner protestors but with combinations of organized individuals. The Espionage Act, Sedition Act, and State Criminal Syndicalism prosecutions that characterized this period were, indeed, mostly conspiracy cases. As such, they were preoccupied with groups, and not individuals. This article traces the social, political, and legal history surrounding the World War I era to make its argument. It responds in part to Professor John Inazu’s 2012 book, Liberty’s Refuge, in which Professor Inazu shows how courts undermined First Amendment rights by creating and then preferring a First Amendment associational right to the textual assembly right. This article fills in some of the blanks left by Liberty’s Refuge, but it goes one step further, arguing that individual speech rights have been preferred over both assembly and association rights. Although this article recognizes a different (but not mutually exclusive) jurisprudential wrong turn, it shares Inazu’s concerns about the shape of First Amendment rights and their effect on democracy.
  • First Amendment,
  • conspiracy
Publication Date
July 30, 2013
Citation Information
Steven R Morrison. "The Conspiracy Origin of the First Amendment" ExpressO (2013)
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