William & Mary Bill of Rights Journal
Abstract
An insidious virus appears poised to invade First Amendment free speech doctrine. “History and tradition,” a deeply flawed variant of originalism, threatens to transform speech law from a rational enterprise, employing tiers of scrutiny to evaluate potential infringements on speech, to a random scavenger hunt through the distant past that could upend numerous vital First Amendment principles.
Traditionalism’s ascendence to the forefront of history-centric constitutional interpretation was heralded in three dramatic cases decided at the end of the U.S. Supreme Court’s October 2021 term. New York State Rifle & Pistol Ass’n v. Bruen elicited particular concern among First Amendment scholars, given its abandonment of tiers of scrutiny in Second Amendment law and its erroneous suggestion that traditionalism was somehow congruent with how First Amendment speech cases are decided. The Court’s conservative wing did not wait long to deploy history and tradition in a speech case. In 2024’s Vidal v. Elster the majority declined to apply strict scrutiny to a content-based law forbidding the registration of a trademark. Instead, the Court performed a deeply flawed history-and-tradition analysis that upheld the regulation, although not without significant push-back from the Court’s more liberal Justices and from conservative Justice Amy Coney Barrett.
This Article first explores the roots of the history-and-tradition analysis, along with the traditionalism previously embedded in First Amendment doctrine. It then performs a deep analysis of the Bruen case, identifying its conceptual flaws. Next, the Article analyzes Bruen’s deployment in Elster, which triggered a serious methodological split among the Justices. The Article then breaks new ground with an exploration of how the Bruen/Elster approach is infiltrating other speech cases in the lower courts. Finally, the Article offers a concluding analysis of the state of the law and the disturbing doctrinal changes that may lie ahead.
This abstract has been taken from the authors' introduction.
Repository Citation
Matthew D. Bunker and Emily Erickson, Free Speech Trapped in Amber: The Rise of the 'History and Tradition' Test, from Unregulated Guns to Highly Regulated Speech, 34 Wm. & Mary Bill Rts. J. 581 (2026), https://scholarship.law.wm.edu/wmborj/vol34/iss3/2Included in
Constitutional Law Commons, First Amendment Commons, Supreme Court of the United States Commons