The speech America’s founders didn’t protect

The First Amendment doesn’t protect what most people think it protects. The Founding Fathers wrote it to defend a specific thing: political speech directed at government. Not offensive art. Not commercial advertising. Not the content moderation disputes on a social media platform. Two centuries of doctrinal expansion have broadened the amendment’s formal coverage considerably and, in doing so, have made it paradoxically harder to protect the speech that made the whole enterprise necessary.

James Madison’s draft, submitted to the First Congress in 1789, prohibited Congress from abridging the freedom of speech or of the press. The target was explicit: The federal government’s power to suppress political opposition through criminal prosecution, prior restraints, and licensing. Patrick Henry’s objection was that federal power without a specific prohibition would find a way to use it. They weren’t writing an abstract theory of free expression. They were writing a prohibition against specific tools they had