The article is here; the Introduction:
Accounts of modern free speech law typically begin in a moment of pragmatic optimism about the value of free speech in a flourishing democracy. In the usual story, which Laura Weinrib helpfully calls "the myth of the modern First Amendment," young progressives like Zechariah Chafee, Felix Frankfurter, Learned Hand, and Harold Laski draw on pragmatist philosophers like William James and Charles Pierce to persuade Justices Holmes and Brandeis of the U.S. Supreme Court that censorship was antithetical to democratic self-government. Holmes announced that the production of more speech served as the best test of truth. Brandeis, championed speech as a guarantor of democracy. Still others believed they had found in freedoms to speak a better way of managing dangerous radicalisms. Leading commentators ever since rest their accounts of the advent of free speech law on one or another variation of a new and hopeful conception of the function of speech in democracy.
Strangely, something like the opposite is more accurate. The distinctive feature of the moment in which modern free speech law arose was but grave new worries about the relationship between free communication and self-government. When Holmes and Brandeis first gave voice to free speech ideas in their famous dissents in the fall of 1919 and 1920, keen observers were coming to terms with a world of distortion and misinformation. Four long years of war propaganda had shown that speech by the powerful could dangerously destabilize public opinion in ostensibly democratic societies. The return to peace, too, had been accompanied by stunning displays of communications power. Storms of racist and nativist public opinion produced a wave of postwar racial pogroms. Employer propaganda smashed postwar strikes in the steel industry and elsewhere. A generation of public relations men left war propaganda efforts, entering new industries like marketing and advertising firmly convinced by their wartime work that information was supremely susceptible to manipulation and control.
At the beginning of modern free speech doctrine, close observers were coming to see speech as more than an indispensable foundation for democratic self-government, though it was that, too. Speech had also become—to adapt Justice Kagan's iconic phrase from a century later—a weapon for democracy's subversion.
