Litigating History: Practical Observations on the Use of History in Litigation

Against this backdrop, this article offers practical observations for advocates unfamiliar with the history of the First Amendment or where to begin researching that history. It is adapted from the American Bar Association’s Forum on Communications Law webinar titled “A Turn Toward History,” which discussed this trend in favor of history at the Court and provided resources and examples for counsel considering using history as a part of their advocacy. A recording of the webinar is available on the Forum’s website. The slides for the webinar, which include links to valuable bibliographic resources, are also available online.

History at the Court

Originalism, the concept of interpreting the Constitution based on the Framers’ original intent or the public’s understanding at the time of ratification, emerged as a counter-movement to what some perceived as the overly expansive (and overly liberal) interpretations of the Warren Court. Robert Bork laid the groundwork for this approach, arguing—in the First Amendment context, as it happens—that the “judge must stick close to the text and the history, and their fair implications, and not construct new rights.”

While Bork never made it to the Court, his theory of constitutional interpretation did. Today, justices on both sides of the ideological divide resort to history to mark the metes and bounds of constitutional rights. We see it especially in Second Amendment cases like the Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, and we see it in other contexts like the overturning of Roe v. Wade.

The Court has begun to import this approach into the First Amendment context, with Justice Clarence Thomas being the long-time proponent for a history-first approach to free speech cases. In McIntyre v. Ohio Elections Commission, an anonymous speech case, Thomas argued that the Court “should determine whether the phrase ‘freedom of speech, or of the press,’ as originally understood, protected anonymous political leafletting.” Around the same time, in 44 Liquormart, Inc. v. Rhode Island, he questioned the historical basis for distinguishing between commercial and noncommercial speech.

Thomas’s insistence that history guide the Court garnered significant attention when, in McKee v. Cosby, he called on the Court to revisit New York Times v. Sullivan. The Court in Sullivan held that public officials suing for defamation had to plead and ultimately prove that the defendant made the defamatory statement knowing that it was false or with a high degree of awareness that it probably was false. However, for Thomas, Sullivan was fundamentally flawed because, he maintained, it lacked a historical foundation. It was little more than a “policy-driven decision[ ] masquerading as constitutional law.”

Two years later, Thomas reiterated his historical criticism of Sullivan in Berisha v. Lawson. This time, Justice Neil Gorsuch joined him. As Thomas had before him, Gorsuch expressed reservations about Sullivan’s historical pedigree: At the Founding, “those exercising the freedom of the press had a responsibility to try to get the facts right—or, like anyone else, answer in tort for the injuries they caused.”

In 2022, a majority of the Court, while not endorsing calls to revisit Sullivan, seemed to endorse the view that history ought to play an important role in understanding the scope of the First Amendment’s protections. In Bruen, a Second Amendment case, the Court held that “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” It defended this history-first approach by claiming that it was consistent with how the Court interpreted the First Amendment.

That observation, however, is concerning because it is not quite right. While history might have informed the Court’s analysis in First Amendment cases of the past, it has never been the be-all and end-all as the Court suggested when it drew the equivalency in Bruen. That a majority of justices would go along with this sleight of hand is surprising and, importantly, raises the question of whether this history-first (or history-only) approach will spread to the Court’s Free Speech or Press Clause jurisprudence.

Litigants and Courts React

Perhaps anticipating this development, litigants and judges alike are already leveraging Bruen’s framework in First Amendment cases. In 303 Creative LLC v. Elenis, the website antidiscrimination case, advocates urged the Court to adopt the Bruen approach, saying that the Court should require the state to provide a historical precedent for its speech regulation there. The Court declined to do so.

Similarly, the Fifth Circuit, in the NetChoice, LLC v. Paxton case, placed significant weight on the original public meaning of the First Amendment, suggesting that relying primarily on precedent was inadequate and chastising the plaintiffs for not grounding their arguments in a supposed original understanding of the First Amendment. This trend continued in the Sixth Circuit more recently when a group of judges endorsed importing Bruen’s approach into a challenge to a campaign speech regulation.

These developments raise serious questions for advocates. “We were not trained as historians. We practiced law, not history. And we do not have historians on staff.” History also does not lend itself to easy answers, and evidence often points in different directions. This means advocates can often weave together a version of quasi-history that vindicates their clients rather than history as such. Courts are thus left to rely on “the arguments of non-historian lawyers, citing cases by non-historian judges, who relied on arguments by other non-historian lawyers, and so on in a sort of spiral of ‘law office history.’”

This is no way to run a circus. And yet, depending on future developments in the Court’s First Amendment jurisprudence, it may not be the lawyer’s choice whether to use history in their advocacy. Indeed, failing to do so might affirmatively disadvantage clients before certain courts. Anticipating this potential shift, lawyers should gain minimal competency in history, historical resources, and the use of history in argument.

How to Think About the History of the First Amendment

We can think about the history of the First Amendment by sorting it into three categories. These categories help guide historical research. Broadly speaking, the history of the First Amendment includes (1) the intellectual or philosophical history of that amendment, (2) the history of journalism itself, and (3) the history of the federal Congresses in early America concerning freedom of speech and the press. Each category may inform how we think about the First Amendment today and shed light on how Founding-era Americans thought of it.

The intellectual history of the First Amendment takes the long view. It looks at the historical development of freedom of speech and the press in England and America in the seventeenth, eighteenth, and nineteenth centuries, placing the First Amendment in context along the long arc of history. This might mean looking to historical developments concerning press freedom, like England’s experience with licensing laws in the seventeenth century, the colonists’ experiences with criticizing the Crown or confronting the Stamp Act before the Revolution, or later conflicts over the Sedition Act, slavery gag laws, or the sacking of abolitionist presses.

But this also includes the philosophical engine behind these developments, which, more often than not, results in a more expansive view of press freedom. English resources include Cato’s Letters by John Trenchard and Thomas Gordon, which presents what was then a radical understanding of press freedom, and writings by authors like Thomas Hayter, Jean-Louis De Lolme, and Robert Hall, whose works influenced the Founding Fathers’ views on freedom of speech. American resources include Tunis Wortman’s A Treatise, Concerning Political Enquiry, and the Liberty of the Press, which advocates for a liberal interpretation of press freedom, and works by St. George Tucker and Thomas Cooley, which offer historical analyses of press freedom in America as opposed to England.

From these developments and works, the advocate can begin to pull out themes that might help contextualize a particular dispute. Of course, as those who advance a narrow understanding of the First Amendment remind us, the colonists undoubtedly understood that the First Amendment prohibited prior restraints. However, many historical resources show that colonists and early Americans began thinking of freedom of the press as more than just that.

Early Americans considered freedom of the press an indispensable condition of effective self-government. Or, in the words of the Continental Congress, the importance of press freedom consisted “in its diffusion of liberal sentiments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs.”

The second category—the history of journalism—looks at the role of journalism in shaping the understanding of press freedom. As I have argued elsewhere, it is impossible to understand press freedom without understanding the history of journalism in this country. Resources like Frederic Hudson’s work Journalism in the United States and Arthur Schlesinger’s Prelude to Independence are two foundational texts that describe this history. Together, they curate the influence that journalism had on the American Revolution and on government into the nineteenth century. More recent works like Jeffrey Smith’s Printers and Press Freedom and Joseph Adelman’s Revolutionary Networks explore the evolving role of printers as advocates for editorial independence during the eighteenth century.

Finally, there is the history of press freedom in the context of the Framing itself: What did the Founders have to say about the nature of press freedom? This category includes resources like Elliot’s Debates, which documents the debates surrounding the ratification of the Constitution, and Max Farrand’s The Records, which compiles records from the Federal Convention, including discussions about the First Amendment. Additionally, the Annals of Congress offer insights into early debates on matters related to press freedom, such as postal service regulations and reporter access to the Senate.

Moving from how to think about press freedom to how to research press freedom, advocates must first become familiar with the historical resources available to them. Happily, there are plenty, and many are online. The webinar outlines many of these resources and includes links to them. These resources include digital libraries like HathiTrust, Internet Archive Books, and Google Books, which provide millions of digitized books—many dating to the seventeenth and eighteenth centuries—and offer text search capabilities, making researching particular issues relatively easy.

Many Founding-era primary source materials are available online, too. Founders Online is a National Archives project that provides access to the Founding Fathers’ correspondence. One of my favorite nuggets is an exchange between John Adams and William Cushing, where Cushing writes: Blackstone’s view “is, no doubt, the liberty of the press,—as allowed by the law of England,” but the question is what “is law now, here.” This draws into doubt that early Americans accepted Blackstone’s understanding of press freedom as their own. Additionally, newspaper archives like Newspapers.com and Readex offer paid subscriptions to access historical newspapers dating back to the 1700s, which show press freedom being debated in real time.

Beyond these resources, more traditional bibliographies relating to freedom of speech and the press can further fill in the historical picture. Theodore Schroeder and, much more recently, Stephen Smith have created extensive bibliographies on freedom of expression that offer a curated selection of influential publications on press freedom. These resources are useful for newcomers to the history of the First Amendment to quickly orient themselves to that history.

Using History in Advocacy

Once we have “found” history, the challenge for lawyers is effectively incorporating it into their arguments. Matt Damon shows how not to do it in a scene from Good Will Hunting. There, he is trying to argue his way out of jail after hitting a police officer. He begins arguing legal precedent “going back to 1789” before he turns to quote “Henry Ward Beecher, in Proverbs from the Plymouth Pulpit, 1887”: “Without liberty, man is a syncope.” The judge does not buy it: “A word of advice for trial; speak English.”

Advocates considering using history should heed the same advice. An undisciplined use of history is unlikely to persuade. Historical evidence should be used purposefully. Some advocates are already doing so, and they tend to use history in three ways: (1) pairing history with text and precedent, (2) using history as emphasis, and, as I put it, (3) using history as a garnish. Examples of each are provided in the webinar slides, and I briefly discuss each here.

The most involved of these approaches is pairing history with text and precedent. This self-explanatory approach appears to be the Court’s preferred use of history in constitutional interpretation. It involves first grounding arguments in the Constitution’s text, then corroborating the text’s meaning with historical evidence, and finally solidifying the position with relevant precedents.

While not a First Amendment case, the brief for the petitioner in City of Grants Pass v. Johnson provides a clear example of this approach. There, the advocates built an argument on the premise that the lower court’s holding “defie[d] the Eighth Amendment’s text and history, as well as this Court’s precedent.” Step by step, they used their briefing to first show how the text of the Eighth Amendment supported their position, and then marshal myriad historical evidence to bolster that read of the text, and, finally, backstop their read of text and history with Supreme Court precedent.

Moving on, using history as emphasis is less involved than the history, text, and precedent approach but can be just as persuasive. This strategy involves highlighting historical examples that support a particular argument, rather than structuring an entire argument around history. One example is in Trump v. Cable News Network, where CNN defended itself by placing its challenged speech within a historical frame: the “Nation was founded on rhetoric comparing political leaders to the historical villains of the time.” Among other things, counsel argued that colonists regularly called King George III “Nero” and a “Tyrant.” Federalists would later call Republicans “political pharisees.” CNN’s conduct, its lawyers argued, merely continued this tradition.

Finally, the history as a garnish approach is similar to history as emphasis except the historical references are even slighter. Take an example from a New York Times brief from Donald J. Trump for President, Inc. v. The New York Times Co. There, history played little role in the Times’s memorandum in support of its motion to dismiss, but that memorandum began with a pull quote to cast the entire case in a particular historical context, namely the Crown prosecution of the colonial printer John Peter Zenger: “To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect ‘the obsolete doctrine that the governed must not criticize their governors.’”

Absent briefing history, parties can work history into their advocacy in other ways. Hustler Magazine Inc. v. Falwell, where the question was whether a crass parody of Jerry Falwell was protected by the First Amendment, is a good example.There, Alan Isaacman, counsel for Hustler, recounted a historical anecdote in response to a question at oral argument about the balance between the First Amendment and other values: a cartoon “that has George Washington being led on a donkey and underneath there’s a caption that, so and so who is leading this donkey is leading this ass.” That example ended up in the Court’s opinion ruling in favor of Isaacman’s client.

Yet another option is to outsource history to amici. This strategy involves enlisting expert historians as amici curiae to provide in-depth historical analyses. As the Court increases its focus on history, amicus briefs from historians are becoming regular fare at the Court and could be useful in lower federal or state courts. In a world where history may regularly control the outcome of a case, at least some judges even lament parties failing to procure expert reports or other support from historians.

Conclusion

It is far from certain that the Court will import its history-first approach into the Speech and Press Clauses with the same gusto that it has in other constitutional contexts. Even if history never controls speech and press cases, it will likely play an important supporting role in how courts interpret the scope of those clauses going forward. For lawyers, this turn toward history presents new challenges and new opportunities. It is incumbent on advocates to confront both while being careful that we do not, as Justice Oliver Wendell Holmes cautioned us, ask too much of history.