Alabama and nineteen other Republican-led states are asking the Supreme Court to blow up more than century of First Amendment precedents. In their place, they are urging the high court’s conservative majority to replace them with an originalist history-and-tradition test that would wipe away many of the free-speech protections that American currently enjoy.
Taylor v. Singleton is ostensibly about whether Alabama can criminally punish a man for holding a sign asking for help under the First Amendment. Beneath the surface, however, the GOP attorneys general are hoping to pull off a counter-revolution against America’s rich, enduring tradition of free speech and expression.
The case began with a homeless man in Montgomery, Alabama. Jonathan Singleton, who is indigent and unhoused, often holds up signs along the state’s highways and sidewalks to call attention to his plight. As a result, according to his lawyers, he has been cited six times for violating the state’s pedestrian solicitation statute.
The most recent sign barely counted as solicitation or begging: It simply read “HOMELESS. Today it is me, tomorrow it could be you.” Singleton was holding up the sign on the grassy side of a highway exit when last cited. In 2020, he filed a federal lawsuit to challenge the Alabama solicitation ban, as well as a counterpart law that banned loitering “in a public place for the purpose of begging.”
Efforts to criminalize homelessness have been met with a mixed reception at the Supreme Court. In June of 2024, the justices held in Grants Pass v. Johnson that an Oregon city’s ordinance against sleeping and camping in public spaces did not violate the Eighth Amendment’s ban on cruel and unusual punishment, even if the defendants had nowhere else to go. The high court’s decision overturned a Ninth Circuit Court of Appeals decision to the contrary and gave Western states broad latitude to criminalize homelessness.
On the other hand, the Supreme Court has also struck down multiple state and local statutes that seek to criminalize public solicitation. In the 1980 case Village of Schaumburg v. Citizens for a Better Environment, for example, the court rejected a Chicago suburb’s ordinance that sought to restrict public solicitation unless a group in question met certain budgetary and licensing conditions.
Such requirements, the court ruled, were too sweeping and poorly tailored to survive First Amendment scrutiny. Justice Byron White noted in his majority opinion that while the court had sometimes allowed states to ban commercial solicitation, it had generally resisted restrictions on charitable solicitations, even in residential neighborhoods, because doing so could infringe upon the solicitors’ free-speech and free-exercise rights.
Alabama’s ordinances covered a wide range of expressive signs and actions. The Alabama Law Enforcement Agency, one of the defendants in the Singleton case, “has made arrests under the begging statute for holding a sign that said ‘homeless anything will help’; for holding ‘a plastic jar’ for ‘Birmingham Restoration Ministries’; and for approaching vehicles with a hat in hand ‘in an effort to beg,’” Singleton’s lawyers told the high court. For that reason, it is unsurprising that the city of Montgomery and its police department reached settlements with Singleton at an early stage of the litigation.
But the state of Alabama, which represented ALEA, did not settle. It first took a defeat in the district court to the Eleventh Circuit Court of Appeals, which sided with Singleton. A three-judge panel concluded last April that begging was constitutionally protected speech under the circuit’s prior precedents, in line with the Supreme Court’s solicitation rulings, and that it was bound by that precedent until the Supreme Court says otherwise.
Now Alabama has asked the Supreme Court to intervene and hopes to establish that begging is not a constitutionally protected right. “Governments need ‘the full panoply of tools in the policy toolbox’ to address the homelessness crisis plaguing their streets,” the state claimed in one of its briefs, quoting from the Supreme Court’s ruling in Grants Pass. “Regulating begging is one such tool, prophylactically turning off one spigot to downstream harms like public intoxication, drug abuse, and encampments before they happen.”
This formulation does not inspire confidence that Alabama actually understands how homelessness works or how to address the root causes of it. Nor does the friend-of-the-court brief from nineteen other GOP-led states, which tried to caveat its argument by explaining that the states “are not seeking to criminalize poverty but rather, to discourage destructive responses to poverty and the impacts those responses have on society.”
What is truly disturbing about this petition is how Alabama wants to win. Federal courts have developed a wide range of doctrines to assess when and how government officials violate the First Amendment, what kinds of speech are protected, and whether the violation is justified under the court’s balancing tests. Alabama argued that that entire framework should be scrapped and replaced with a flat “history and tradition” test to rule in their favor.
“Courts across the country have reduced the freedom of speech to a ‘mechanical jurisprudence’ of ‘oversimplified formulas’ that ‘treat[…] society as though it consisted of bloodless categories,’” the state claimed in its petition. “The Court should grant certiorari to restore the role of history and tradition in an area of First Amendment jurisprudence where it is badly needed.”
In this particular case, Alabama argued that its anti-begging law is constitutional because states in the founding era had a wide range of laws to punish people for “vagrancy” and similar offenses. “At the founding, States commonly prohibited idleness, wandering about with no course of business or fixed residence, begging in the streets, and the like,” the state claimed. “The basic theory, inherited from the English, was to distinguish those who could work (but refused) from those could not. The law demanded ‘honest labor’ from the former and charity to the latter.”
Singleton took a much different view of this history, which he described as “shaky originalism right out of the gate.” He noted that vagrancy laws fell out of favor because post-Civil War constitutional amendments destroyed the basis for their existence. “The Thirteenth Amendment forecloses the theory of involuntary servitude that undergirded many of the founding-era vagrancy laws,” Singleton explained to the justices, quoting from recent precedent, “and the Fourteenth Amendment forecloses the use of vagrancy laws to ‘maintain […] racial hierarchy,’ as attempted by southern states in the wake of the Civil War.”
The Supreme Court recently experimented with history-and-tradition tests for other constitutional rights. It hasn’t gone well. In 2022, the court’s conservative majority ruled in New York State Rifle and Pistol Association v. Bruen that gun regulations presumptively violate the Second Amendment’s individual right to bear arms unless they could be connected to some analogous law from the 18th or 19th century.
That “history and tradition” test led to chaos in the lower courts as federal judges acting in good faith reached starkly different conclusions about which laws passed historical muster. Eventually, the justices were forced to scale it back in United States v. Rahimi in 2024 by widening the scope of what counted as a historical analogue. Thomas, the author of Bruen, found himself as the sole dissenter that time around.
The Rahimi setback has not stopped Thomas from trying to introduce similar jurisprudential time-bombs into First Amendment law, most recently in the 2024 trademark case Vidal v. Elster. At issue was whether the U.S. Patent and Trademark Office could refuse to register trademarks that disparaged living people—in this case, the phrase “Trump too small.” The court upheld the agency’s refusal in part because federal trademark law had consistently rejected such applications.
“Our courts have long recognized that trademarks containing names may be restricted,” Thomas wrote for the court. “And, these name restrictions served established principles. This history and tradition is sufficient to conclude that the names clause—a content-based, but viewpoint-neutral, trademark restriction—is compatible with the First Amendment. We need look no further in this case.”
Beneath the surface, however, he received pushback from an unlikely source: Justice Amy Coney Barrett, who took issue with his hamfisted usage of history and tradition to resolve a case that could’ve been dealt with under existing First Amendment doctrines. “Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests,” she explained in her partially concurring opinion. “But a rule rendering tradition dispositive is itself a judge-made test. And I do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle.”
Barrett had good reason to resist Thomas’s approach. Reducing the First Amendment to a mere history-and-tradition test, as Alabama proposes, would amount to the most severe reduction in Americans’ free speech rights since the republic’s founding. Founding-era state legislatures imposed restrictions on a much wider range of speech and expression than any Americans have experienced in living memory.
Multiple post-revolutionary states had anti-blasphemy laws, and they were infrequently enforced throughout the 19th century as well. Some early American states had much lower thresholds for libel; a history-and-tradition test would likely make it much easier for wealthy Americans to punish speech that criticizes them. The federal government might even be able to enact laws that make it illegal to criticize the president or other government officials, pointing to the Alien and Sedition Acts as a historical analogue.
Alabama does not really deny that diminishing Americans’ free speech is their goal. “While the Court may be unlikely to walk back the First Amendment’s application to profanity or blasphemy,” the state coyly claimed in response to Singleton’s brief, quoting from concurring opinions by Thomas, “‘these changes appear to have reflected changing policy judgments, not a sense that [the founding-era laws] violated the original meaning of the First or Fourteenth Amendment.’”
It is unclear whether there will be four votes to take up the case, let alone five votes to rule in Alabama’s favor. Barrett’s challenge in Vidal signals that at least some of the court’s conservative justices wouldn’t be on board with it. But it is deeply disturbing that this many Republican-led states would be behind such a concerted attack on free speech. And it is deeply ironic that they might bring back blasphemy laws by enforcing an ordinance that is itself a blasphemy against the New Testament.
