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“How America’s Constitution Affirmed Freedom of Speech Even Before the First Amendment,” 38 Cap. U. L. Rev. 503 (2010)


In this essay, I hope to say a little something about both constitutional substance and constitutional method. Substantively, I shall try to bring into view a heretofore hidden argument in support of the constitutional right of Americans to engage in a robust, wide-open, virtually uncensored conversation about government and society-a conversation in which participants may let fly scathing criticisms (and tart defenses, for that matter) of the status quo. Methodologically, I hope to show how this hidden argument travels through a recognizable version of standard originalism, but with some interesting twists.

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