Text messaging has emerged as a defining medium of interaction for millions of Americans. This simple form of communication has transformed the way Americans advocate for change, share information, conduct business, and cultivate relationships. In response to growing security and privacy concerns, leading messaging platforms have begun encrypting text messages by default, igniting a debate over the scope of First Amendment coverage.
This Article challenges the notion that encrypted speech is a modern phenomenon requiring novel constitutional analysis. Drawing from extensive archival research into the private correspondence of America’s foremost Founders, as well as doctors, lawyers, and businessmen of the era, this Article uncovers a forgotten yet vibrant tradition of encrypted communication. In response to an insecure postal system, eighteenth-century Americans routinely encrypted their politically, financially, and romantically sensitive letters using methods that proved impenetrable to surveillance efforts.
Encryption, it turns out, played an indispensable—and, fittingly, often overlooked—role in early American democracy. James Madison relied on encrypted correspondence to shield constitutional deliberations from public view, while Thomas Jefferson turned to anonymized and encrypted letters to organize the nation’s first opposition party. This history demonstrates that encryption was not merely present but instrumental in forming the very constitutional protections now invoked by messaging platforms. As courts grapple with modern encryption technologies, this Article argues that they should recognize encrypted speech not as a novel challenge, but as the digital successor to a cherished Founding-era practice.