Part I will begin the story with the Founders' understanding of the structural role of the First Amendment. In this understanding, the First Amendment served as a bulwark of state independence. Along with the rest of the Bill of Rights, the First Amendment had as its primary purpose maintenance of the federal system--or, more precisely, protection of the states against federal government overreaching. The Founders' plan left the individual states entirely free to regulate speech, while strictly prohibiting the federal government from displacing the states' various speech regimes.
When the Civil War dramatically reshaped the federal-state relationship, the structural purpose of the Bill of Rights changed in response. Part II will describe this change. No longer were the Constitution's protections of individual rights aimed exclusively at the national government. Indeed, over the seventy years following the Civil War, imposing restrictions on state governments became a central constitutional concern. But this concern found expression not through the Free Speech Clause of the First Amendment but through the property-focused guarantees of the Fifth and Fourteenth Amendments. Free speech was relegated to the periphery. This period, from the Civil War to the New Deal, was the nadir of the First Amendment.
Part III will show how the New Deal brought free speech to the center of constitutional jurisprudence. This shift, too, was the product of a broad-gauged reconfiguration. The legitimation of activist government rendered previous constitutional understandings unworkable. No longer could liberty be guaranteed--as in the Federalist era--by protecting the independent authority of the states, or--as in the Civil War era--by preserving common law rights to property and contract. Instead, the Supreme Court has interpreted the constitutional guarantee of liberty as protecting the processes of democracy and electoral accountability. In the New Deal era, the Court has extended to political affairs the libertarianism it earlier applied to economic affairs: The First Amendment prohibits the government from rearranging private distributions of political resources. The impetus for this interpretation comes from the highly undemocratic and unaccountable nature of the administrative state. Because the New Deal era government is so powerful, the liberty principle embedded in the First Amendment requires the Court to ensure the state's subjection to popular control.
Having identified the three eras of free speech jurisprudence in Parts I, II, and III, Part IV will elaborate the scholarly method and the premises about constitutional theory that underlie this recounting. This method is holistic, structural, and historical. It understands each constitutional component in relation to other provisions; it focuses on the concrete institutional endowments effected by constitutional lawmakers rather than the general principles those lawmakers arguably endorsed; and it is sensitive to the development of constitutional structure over time. Part IV will conclude by examining the normative implications of the history of the First Amendment. Contemporary free speech doctrine suffers from many of the same defects that eventually forced the abandonment of earlier eras' liberty jurisprudence. Understanding the origins of the modern orthodoxy will suggest directions for future change.
David Yassky, Eras of the First Amendment, 91 Colum. L. Rev. 1699 (1991), http://digitalcommons.pace.edu/lawfaculty/930/.