The issues: What events influenced the thinking of the framers about the right of free speech? What is the original understanding of the First Amendment? What values does the Free Speech Clause serve?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Although First Amendment jurisprudence is almost entirely a creation that began in the 20th century, common law protection for free speech began much earlier, in the 18th and 19th centuries.
The trial of printer John Peter Zenger in 1735 was a landmark in the development of common law protection for free speech. In the Zenger case, a New York jury returned a verdict of "not guilty" on a charge of seditious libel--in contrast to the practice in England where juries were permitted only to decide whether the defendant printed the allegedly libelous words. As a result of the precedent set in the Zenger case, and the reluctance of juries to support prosecutions for seditious libel, the common law of seditious libel in America became generally unenforceable.
In England, meanwhile, thinking about free speech issues was strongly influenced by William Blackstone who, in his Commenataries on the Laws of England (1769), wrote of liberty of press as consisting "in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published."
Blackstone's view of no prior restraints formed the bare minimum of protection that James Madison intended to protect when he, as a congressman from Virginia in the first House of Representatives, drafted the Bill of Rights. Of course, most observers believe that Madison meant to protect a great deal more speech that Blackstone might have been inclined to protect.
Madison's original draft of the Bill of Rights contained two proposed amendments dealing with freedom of speech. One proposed amendment said "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, one of the great bulwarks of liberty, shall be inviolable." The other proposed amendment of Madison read: "No state shall violate the equal rights of conscience, or of the press." Congress, however, did not support Madison's efforts to apply free speech protections against the states, even though Madison called that amendment the "most valuable amendment on the whole list." (It would not be until the 1920s, when the Supreme Court held the First Amendment protections to be incorporated through the Fourteenth Amendment, that freedom of speech guarantees would apply against the states.)
Just seven years after adoption of the First Amendment, Congress passed the Sedition Act of 1798. The Act was enforced against Republican papers in an effort to keep Jefferson's party from defeating the Federalists in the 1800 election. Jefferson won anyway, and the Sedition Act expired by its own terms in 1801, without ever being tested by the Supreme Court. The Act did, however, touch off a lively debate on free speech issues and prompted both Madison and Jefferson to write discourses on freedom of speech and the press.
Although a few First Amendment cases, often involving obscenity, were decided by the federal courts in the 1800s, it was not until World War I that the Supreme Court really began to develop the jurisprudence that will be our study.
1. If a referendum were held today on whether to adopt the First Amendment, do you think it would pass? 2. Polls show that most Americans support free speech in theory, but when they're asked more specific questions such as "Should Americans be free to advocate communism?" Most Americans are far less willing to support free speech values. How to you explain this? 3. Which of the three general approaches to First Amendment analysis is best? Why? What are the advantages and disadvantages of each approach? 4. Which of the values served by the Free Speech Clause to you consider to be the most important? Why? 5. What are some of the costs of protecting free speech? Which are the most significant costs in your opinion?
Three Possible Approaches to First Amendment Analysis
1. The Absolutist Approach The Absolutist Approach is most often associated with Justice Black, who held that the First Amendment meant exactly what it says: that Congress shall make NO law abridging the freedom of speech. Under this approach, the only question is whether the action in conduct is truly "speech" (and therefore protected) or "conduct" (and therefore subject to reasonable governmental regulation. Even absolutists such as Justice Black recognized that words might be so closely connected with producing a specific action (such as entering into a contract with a hitman or yelling "Fire!" in a crowded theater) as to be unprotected. 2. The Categorical Approach The Categorical Approach would protect or not protect speech based on the label that is attached to the speech in question. Certain categories of speech are seen (such as, for example, obscenity or "fighting words" or--at one time--commercial speech) as falling entirely outside of First Amendment protection, whereas most other categories of speech are either highly protected or protected absolutely. 3. The Balancing Approach The Balancing Approach sees the Absolutist Approach as impracticable and the Categorical Approach as artificial. Balancers believe that in every case courts should weigh the individual's interest in free expression against the government's interest in restricting the speech in question. Most balancers hold that the presumption should be in favor of free expression--that there is a thumb on that side of the scale--which can only be overcome with a showing of an especially strong governmental interest. (Some commentators have distinguished between "definitional" and "categorical" balancers. The definitional balancers favor the sort of ad hoc balancing in which every individual factual difference of a particular defendant could affect the balancing, whereas the categorical balancers look at the interests of speakers in the category that the includes the defendant.)
Values Served by the Protecting of Free Speech
1. The Discovery of Truth This value was first suggested by Milton, who first suggested that when truth and falsehood are allowed to freely grapple, truth will win out. 2. Facilitating Participation by Citizens in Political Decision-Making It has been suggested that citizens will not make wise and informed choices in elections if candidates and proponents of certain policies are restricted in their ability to communicate positions. 3. Creating a More Adaptable and Stable Community (The "Safety Valve" Function) It is suggested that a society in which angry and alienated citizens are allowed to speak their mind--"vent"--will be more stable, as people will be less likely to resort to violence. It has also been pointed out that allowing the alienated and discontented to speak freely enables government to better monitor potentially dangerous groups who would otherwise act more clandestinely. 4. Assuring Individual Self-Fulfillment Free speech enables individuals to express themselves, create and identity--and, in the process perhaps, find kindred spirits. Freedom of speech thus becomes an aspect of human dignity. 5. Checking Abuse of Governmental Power As Watergate, Irangate, Clintongate (and all the other "gates") demonstrate, freedom of the press enables citizens to learn about abuses of power--and then do something about the abuse at the ballot box, if they feel so moved. 6. Promoting Tolerance It has been argued that freedom of speech, especially through our practice of extending protection to speech that we find hateful or personally upsetting, teaches us to become more tolerant in other aspects of life--and that a more tolerant society is a better society. 7. Creating a More Robust and Interesting Community A community in which free speech is valued and protected is likely to be a more energized, creative society as its citizens actively fulfill themselves in many diverse and interesting ways.