Specifically, Judge John Bush said that judges should discern the original understanding of free speech in “linguistical meaning” and “evidence of how Americans ordered their lives” in the 1790s.

The Second Amendment case to which the authors referred was New York Rifle & Pistol Association v. Bruen, in which the Supreme Court ruled that, among other considerations, gun control laws must be consistent with the “historical” standard of restrictions on firearms.

The primary argument the authors made is that relying solely, or mostly, on historical interpretations of the law to define the scope of free speech is problematic. They contend that taking such an approach could lead to inconsistent, regressive, and ultimately tyrannical rulings that would roll back protections on speech.

“If rules from the 1790s were enforced today, citizens could be jailed for criticizing politicians, public figures could freely use defamation law to punish critics, and schoolchildren would have few if any free speech rights,” the authors stated.

The authors also noted court cases that expanded the right to free speech, specifically a 1943 case where a court “held that the government could not compel students to salute the flag because ‘no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.’”

They also brought up a 1971 case that “held that the government could not ban vulgar or offensive speech.”

Yet, in the 17th and 19th centuries, the government had no problem with restricting speech in a way that seems foreign to us today:

Historically, the wrong kind of speech could land you in jail. Laws criminalizing blasphemy, government criticism, tepid sexual content, and other speech viewed to be bad or harmful were commonplace at the country’s founding.

Another historical example the authors offer is the prohibition of abolitionist speech in Southern states, showing how restrictions on speech were used to uphold oppressive institutions such as slavery. //

any court decision should be made through the lens of liberty, seeking to ensure the state does not infringe on any of our rights without an exceedingly good reason. The Framers sought to create a system of governance that would make it difficult for the state to impose laws or policies that make it more intrusive in our lives. The goal was to cultivate a society free from oppressive and unnecessary restrictions imposed with the threat of government violence.

The north star for any court should be liberty, regardless of whether it is in line with historical precedent. Otherwise, those seeking to violate our rights will find it far easier to do so.