Abstract
This Article examines the increasing reliance on "history and tradition" as a method of constitutional analysis in First Amendment cases involving intellectual property. The author argues that, although the Supreme Court has recently embraced this methodology in other constitutional contexts, particularly Second Amendment jurisprudence, it has long relied on similar reasoning to uphold intellectual property rights against First Amendment challenges. Through an analysis of cases involving the right of publicity, copyright, and trademark law, the Article contends that the Court has used historical analogies to justify expanding intellectual property protections while giving insufficient consideration to their impact on free expression. The author critiques this approach as historically inconsistent and overly flexible, allowing courts to selectively invoke historical traditions without meaningful constraints. Rather than treating history and tradition as a substitute for constitutional scrutiny, the Article argues that courts should continue to evaluate whether speech restrictions are appropriately tailored to serve legitimate governmental interests. It concludes that historical analysis may help identify permissible government objectives but cannot, standing alone, resolve modern conflicts between intellectual property rights and the First Amendment.
Repository Citation
Rebecca Tushnet,
History and Tradition in First Amendment Intellectual Property Cases: A Critique,
30
Marq. Intell. Prop. & Innovation L. Rev.
187
(2026).
Available at:
https://scholarship.law.marquette.edu/ipilr/vol30/iss2/3