The article is here; the Introduction:
That we have government at all is largely because we distrust each other: At its best, government establishes and enforces the rule of law to create the conditions that enable all sorts of valuable endeavors. But even as we need our government to protect us from each other, we also need to protect ourselves from our government. For this reason, the American constitutional tradition tells a story of simultaneous distrust of the people and of the government.
First Amendment law exemplifies this tradition of distrust. While courts and commentators have long posited that speech deserves constitutional protection when it is affirmatively valuable in facilitating democratic self-governance, enlightenment, and individual autonomy, the First Amendment tradition also relies on what many call a negative theory of the Free Speech Clause. Under this approach, the Constitution protects speech not so much because it is so valuable, but instead because the government is so dangerous in its capacity to abuse its regulatory power. Negative free speech theory thus understands the First Amendment to be more about our fears of the government than about our affirmative aspirations of the good. (At the same time, "negative" and "affirmative" First Amendment theories are not mutually exclusive, and courts and commentators commonly rely on multiple theories rather than insisting on any one free speech theory to the exclusion of all others.)
In short, negative First Amendment theory is about a negative value: distrust of government. And because the government gives us plenty of reason to distrust it, negative theory packs substantial power.
The many examples of negative theory at work include United States v. Alvarez, where a divided Supreme Court invalidated the federal Stolen Valor Act, a law that punished intentional falsehoods about receiving military honors. That case required the Court to consider a speaker's criminal conviction for his self-aggrandizing lie that he had received the Congressional Medal of Honor. Although all parties agreed that that law neither punished nor chilled any valuable speech, the plurality relied on negative theory—that is, a focus on constraining the government rather than protecting worthy speech—to uphold the First Amendment challenge:
