Rebecca Tushnet, Not Waving but Drowning: Saving the Audience from the Floods, in The Perilous Public Square: Structural Threats to Free Expression Today 48 (David E. Pozen ed., 2020).
Abstract: The First Amendment was a dead letter for much of American history. Unfortunately, there is reason to fear it is entering a new period of political irrelevance. We live in a golden age of efforts by governments and other actors to control speech, discredit and harass the press, and manipulate public debate. Yet as these efforts mount, and the expressive environment deteriorates, the First Amendment has been confined to a narrow and frequently irrelevant role. Hence the question—when it comes to political speech in the twenty-first century, is the First Amendment obsolete?