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Free speech cannot be progressive. At least it can't be progressive if we are talking about free speech in the American context, with all the historical, sociological, and philosophical baggage that comes with the modern, American free speech right. That is not to say that the right to free speech does not deserve protection. It might serve as an important side constraint on the pursuit of progressive goals and might even protect progressives against the possibility of catastrophic outcomes. But the notion that our free speech tradition might be weaponized to advance progressive ends is fanciful. The American free speech tradition is too deeply rooted in ideas about fixed property rights and with an equation of freedom with government inaction to be progressive. Instead of wasting energy on futile efforts to upend our first amendment traditions, progressives should work to achieve their goals directly.

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Louis Michael Seidman, Can Free Speech Be Progressive? Colum. L. Rev. (forthcoming)