Justice Louis Brandeis concurrence articulated the American idea of freedom of speech many decades before the Supreme Court began expanding the rights of expression under the First Amendment. Some of his ideas have become critical justifications for safeguarding freedom of speech even under the most challenging conditions.
Justice Oliver Wendell Holmes built his support for freedom speech atop the sturdy foundation of the marketplace of ideas, supported long before by John Milton (Areopagitica) and John Stuart Mill (On Liberty). Holmes argued that “the theory of our Constitution” is that “the ultimate good desired is better reached by free trade in ideas.”
James Madison, author of the First Amendment, wrote what is surely the most powerful defense of freedom of the press in America. He did it in protest against the Sedition Act of 1798, enacted just seven years after ratification of the First Amendment.
A writer who took the name Junius Wilkes made a critical contribution to the discussion of press freedom in 1782. He argued that the press should be protected for criticisms of government officials “when they even appear false and groundless.”
A writer calling himself Father of Candor was far ahead of his time when he attacked seditious libel in 1764. He argued that truth should be an absolute defense against libel, and that only intentional lies should be subject to libel laws.