The United States is an outlier in the field of speech law. No other country in the world offers the same protection to such a wide range of speech, including hate speech, demonstrably untrue speech, or speech that the targeted individual or group might well perceive as either demeaning or threatening. Unlike the United States, most nations, as well as international human rights law, consider protection of the dignity of the individual as equal in importance as the right to speak and hear.

The reason for this uniqueness lies in the First Amendment to the Constitution, or, rather, in the Supreme Court’s interpretation of the speech clause in that amendment. The Court’s reading of the clause is not the only possible one, however, and in fact there is and has been great division over time among the justices about what the amendment means. Helen J. Knowles and Steven B. Lichtman’s Judging Free Speech brings together essays by a variety of scholars about nine of the past and present justices’ view of, and contributions to, speech law. The justices included range chronologically from Oliver Wendell Holmes to Stephen Breyer, thereby covering most of the development of American speech jurisprudence. That is “most” but not all of it, and this will be explained later.

The editors’ introduction to the volume contains a section entitled “A Potted History of American Free Speech Jurisprudence Before World War I.” It would be a useful few pages to assign to undergraduates, as would the chronological list of Supreme Court decisions from 1907 to 2014 that follows. The list leads naturally to the first essay, which is, appropriately, about Justice Holmes, and written by Frederick P. Lewis. The other justices examined are George Sutherland (Sameul R. Olken), Hugo Black (Michael Paris and Kevin J. McMahon), John Marshall Harlan, II (Douglas E. Edline), William Brennan (James C. Foster), Potter Stewart (Keith J. Bybee), Anthony Kennedy (Helen J. Knowles), Clarence Thomas (Steven B. Lichtman), and Stephen Breyer (Mark Tushnet). A conclusion by the editors focuses on the speech jurisprudence of the current Roberts Court.

One thread that runs through all of the essays is the inconsistency not only of the Court’s rulings over the years but of the positions staked out by each of the justices. The editors entitle their conclusion “It’s Complicated,” and the essays prove that unpacking the meaning of the speech clause and applying it to specific cases has been exactly that. Foster, for example, details the evolution of Justice Brennan’s thinking from Roth v. United States (1957), which condemned obscene speech, to New York Times v. Sullivan (1964), which reshaped libel law by allowing the widest possible latitude to political commentary even when it was untrue. Tushnet examines the development of Justice Breyer’s doctrine of “active liberty” and the way the justice gradually came to differentiate between political and commercial speech. And Holmes, of course, went from his use of the clear and present danger doctrine in Schenck v. United States (1919), where he utilized his formulation as the basis for upholding the convictions of antiwar protestors, to redefining the doctrine eight months later to permit precisely such speech (Abrams v. United States, 1919).

One of the things that is missing in the volume, however, is any discussion of exactly why application of the speech clause is so complicated. Olken points out that Justice Sutherland’s speech jurisprudence was in keeping with that proponent of substantive due process’ desire to protect business, emphasizing as it did “the business of expression” (p. 50) and the protection of publishers from regulations that would interfere with their ability to publish whatever they wanted. Paris and McMahon’s essay implicitly provides a contrast, demonstrating that Justice Black was concerned not about the business of expression but, rather, about the ability of citizens with lesser means to communicate their views to the public. This difference led the two justices in quite opposing directions. Paris and McMahon also point to Black, as near an absolutist on speech as the Court is likely ever to see, as seemingly violating his own approach by arguing in Tinker v. Des Moines (1969) that students could be punished for wearing anti-Vietnam war armbands to school. Litchtman portrays Justice Thomas’s “mostly uncompromising absolutism” about the speech clause (p. 191) and yet describes the justice’s acceptance in Ashcroft v. ACLU (2002) of “community standards” as a limitation on Internet speech.

Today’s readers will be well aware of the sometimes bitterly opposing views of the justices in campaign finance cases such as Citizens United v. FEC (2010). Why does such a seemingly straightforward statement—“Congress shall pass no law … abridging the freedom of speech”—lead to such contrasting interpretations? The authors appropriately concentrate in their separate essays on “their” justices, but the editors would have performed a service by providing an overall analysis. It might begin by pointing out that the Court has never grappled successfully with the basic question of whether or how the clause should be interpreted differently when applied to challenges against action by the states, rather than the federal government. Or, perhaps more pertinently, the country at large has never considered whether it wants what was meant as a prohibition only against federal action to apply equally to that by states and municipalities.

This brings us to the matter of the editors’ choice of justices to be examined, and the lacuna referred to at the beginning of this review. The range of approaches to speech law covered by the nine chosen is, for the most part, useful if a bit idiosyncratic (rather than the influential Antonin Scalia, for example, including the far-less-important Clarence Thomas as an indication of the way originalism has been applied to the First Amendment), pointing up as it does the very diverse directions in which speech jurisprudence could have gone and still might conceivably go. But the major reason for the justices’ divergence is that they do not agree on what the speech clause was meant to do, and why.

The only justice to pen a thorough-going discussion of the rationale was Louis Dembitz Brandeis, who did so in Whitney v. California (1927). His concurrence in that case has become the cornerstone of this country’s approach to speech and is regularly cited by the justices in virtually every speech case to come before them. Its omission here means that students will be hard-pressed to understand the rationale that is in the justices’ minds as they examine not only the kinds of cases they have decided in the past but also today’s and tomorrow’s pressing speech questions, including use of the Internet for bullying and terrorist recruitment. It is unfortunate that this volume will not be helpful there.