Abstract
There are indications that the “history and tradition”
approach the Supreme Court applied to gun rights and abortion
restrictions may be coming for First Amendment doctrine. In intellectual property cases, it already has, with the Court using historical analogies for the right of publicity, copyright, and trademark. Unlike in the Second Amendment context, where the Court has reasoned from things earlier regulators didn’t
do to strike down gun regulations today, in “history and tradition”
First Amendment law the Court has reasoned by broad analogy to allow new
speech restrictions.
One lesson is that the history and
tradition approach does not meaningfully constrain Justices even in
low-political-salience areas like copyright and trademark, outside
highly politicized contexts. The manipulability of levels of generality
in making historical analogies has been justly criticized, but the IP
cases provide a particularly clear contrast in outcomes from those in
the Second Amendment cases, despite putatively using the same method of
looking to historical models before—and even in place of—applying a
means-ends test or other non-analogic scrutiny.
from Blogger http://tushnet.blogspot.com/2025/08/new-article-history-and-tradition-in.html
Rebecca Tushnet 