The 1950s and the rise of the Cold War saw a shrinking of First Amendment rights (yes, the war was that cold). In Dennis et al v. US (1951), the Supreme Court upheld the Smith Act, which made membership in the Communist Party illegal, and even reverted to the "bad tendency" test for this case. Communists no longer had to be shown to be dangerous to the US for their speech and press to be repressed. It wasn't until the 1960s and the awakening of a slew of social movements and a resurgent left, that speech on the far ends of the spectrum were found to be protected by the seemingly straightforward First Amendment.

Ironically, it wasn't the Panthers or Students for a Democratic Society (SDS) that won free speech for the fringe—it was the Klan. The Supreme Court overturned Ohio's criminal syndicalism law in Brandenburg v. Ohio (1969). Brandenburg was an Ohio Klan leader who held a rally and invited local TV stations to tape it. Even though he promised "revengeance" on the government for anti-white politics, the Court shielded him and his fellow Klansmen from criminal penalties and reversed the old Whitney decision. What changed in the 1960s was that the Court "realized" a difference between preaching the moral necessity for violent overthrow of the system and actively organizing for such an overthrow, or actively sparking such violence. And what made the Court come to such a realization? The fact that, by the late 1960s, over a million Americans considered themselves revolutionaries and millions more demanded broad free speech rights for all, no matter how loathsome the speech acts.

Decades later, the left is once again in shambles and the right on the rise. It is not a surprise to see speech and press once again confused (Webpages, in spite of their similarity to periodicals, leaflets and books, are often considered "speech") and proscribed limits for publication and speech succeeding more frequently now than in the 1960s. The Founders' real vision of the First Amendment remains in place, in spite of the best efforts of 200 years' worth of insurrectionary pamphleteers and fifty gagillion watts of furious dorm-room discussions about the revolution, man.

Both the right and the left have their own agendas when they call upon the spirit of the Founding Fathers and the First Amendment. The political mainstream attempts to appeal to the ghostly and impossible past of the Founders while slapping together political platforms that are as alien to those old, dead geezers as your collection of pornographic elf comics would be. The left is wrong when it calls for the protection of the mythical First Amendment; it was never designed to protect the rights of the poor and downtrodden against the depredations of the finance state. The fringe-right's frantic seance hasn't made Thomas Jefferson ring a little bell or blow a spirit horn either. The "Founders' intent" interpretation would be as disastrous to corn-pone populists today as it was 200 years ago. Hillbillies and rednecks weren't invited to the Constitutional Convention, nor were they expected to have any part in society. American fascism's call for a return to the spirit of the Founders is just words in the mouth of a pointy-headed sock puppet belonging to the ruling elite. [14]

Neither the politics, nor intent, nor the spirit of the Founders informs modern notions of the First Amendment. If anything, America owes its radicals, malcontents, and revolutionaries its thanks for forcing a free press to develop. Much the same way one can't have a labor union, a strike, or industrial sabotage without a fatcat and a smoke-belching factory in the first place, the modern press is as free as it is in spite of the Founders' vision of a free press. Capital provided the raw material for a society where any cement-head can write a screed on a free Yahoo Web site, but it was the opponents of capital who opened the political space for that cement-head to do so. The First Amendment isn’t the dream of the dusty corpses of a roomful of lawyers and slaveowners, it is the end result of the hard work of people who want to hang every lawyer with the entrails of every CEO after the revolution comes. [15]

Nick Mamatas called George W. Bush a coke-addled neo-Confederate in Fortunate Son: George W. Bush And The Making Of An American President, revealed that the Dalai Lama a slave-owning gunrunner on Disinformation, compared Al Gore to an effete British fop who pummels his Malaysian houseboys in the Greenwich Village Gazette and implicated the Carter administration in the massacre which ended a democratic and anarchistic urban insurrection in South Korea in Kwangju Diary: Beyond Death, Beyond The Darkness Of The Age. He has also done a bunch of other things you probably wouldn't like as well.