The Volokh Conspiracy - The Original Meaning of the Free Speech/Press Clause:

I'm planning to blog in a few days about my new law review article on Symbolic Expression and the Original Meaning of the First Amendment (forthcoming next year in the Georgetown Law Journal). But before I get into that, I wanted to make one broad note: While I think I've found solid evidence about the original meaning of the Free Speech/Press Clause as to one matter, the bigger picture original meaning of the Clause is in many ways hard to determine.

The trouble is that there were several rival views of "the freedom of speech, and of the press" in play around the time of the Framing. It's thus not clear what the original meaning of the Clause was, or even whether it had a single, determinable original meaning. For instance, there is substantial authority for all these possible meanings of the clause:

The freedom consisted only of freedom from prior restraints, and didn't apply to subsequent punishments, such as criminal or civil liablity. See, e.g., Libellous Publications, 1 U.S. Op. Atty. Gen. 71, 72 (1797).
The freedom of the speech and of the press requires that all subsequent punishments be imposed only after a jury verdict, in which the jury was entitled to decide whether the speech was unprotected. See, e.g., Penn. Const. art. IX, § 7 (1790).
"The genuine liberty of speech and the press, is the liberty to utter and publish the truth" and not "falsehood and slander" about the government or private persons. Massachusetts Resolutions in Reply to Virginia (1799); cf. Penn. Const. art. IX, § 7 (1790) (providing that "truth may be given in evidence" in libel cases involving allegations related to "the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof").
Even statutes such as the Sedition Act of 1798, which ostensibly applied only to false statements, violated the freedom of speech and of the press. Massachusetts Resolutions in Reply to Virginia (1799) (providing that "truth may be given in evidence" in libel cases involving allegations related to "the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof").

As I said, there are some things on which most people of the era would have agreed on, for instance that false, defamatory statements about individuals were constitutionally unprotected, at least against state libel lawsuits and likely state libel prosecutions (even though many state constitutions of the era expressly protected the freedom of the press). But beyond that my sense is that was a great deal of disagreement, even on the fundamental issues I noted above. This need not be true as to all constitutional provisions, but it appears to be true as to the Free Speech/Press Clause.

It seems that the Framers — like many politicians since then (and likely before then) — were often happy to avoid difficult issues by enacting broad language that was generally agreed to at a high level of generality, but the specific meaning of which was contested. This is unfortunately a serious problem for original meaning analysis in those fields, though as I said I think there is some original meaning that can be gleaned as to particular questions.

	[Eugene Volokh, September 15, 2008 at 12:41pm] Trackbacks The Original Meaning of the Free Speech/Press Clause: I'm planning to blog in a few days about my new law review article on Symbolic Expression and the Original Meaning of the First Amendment (forthcoming next year in the Georgetown Law Journal). But before I get into that, I wanted to make one broad note: While I think I've found solid evidence about the original meaning of the Free Speech/Press Clause as to one matter, the bigger picture original meaning of the Clause is in many ways hard to determine. The trouble is that there were several rival views of "the freedom of speech, and of the press" in play around the time of the Framing. It's thus not clear what the original meaning of the Clause was, or even whether it had a single, determinable original meaning. For instance, there is substantial authority for all these possible meanings of the clause: The freedom consisted only of freedom from prior restraints, and didn't apply to subsequent punishments, such as criminal or civil liablity. See, e.g., Libellous Publications, 1 U.S. Op. Atty. Gen. 71, 72 (1797). The freedom of the speech and of the press requires that all subsequent punishments be imposed only after a jury verdict, in which the jury was entitled to decide whether the speech was unprotected. See, e.g., Penn. Const. art. IX, § 7 (1790). "The genuine liberty of speech and the press, is the liberty to utter and publish the truth" and not "falsehood and slander" about the government or private persons. Massachusetts Resolutions in Reply to Virginia (1799); cf. Penn. Const. art. IX, § 7 (1790) (providing that "truth may be given in evidence" in libel cases involving allegations related to "the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof"). Even statutes such as the Sedition Act of 1798, which ostensibly applied only to false statements, violated the freedom of speech and of the press. Massachusetts Resolutions in Reply to Virginia (1799) (providing that "truth may be given in evidence" in libel cases involving allegations related to "the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof"). As I said, there are some things on which most people of the era would have agreed on, for instance that false, defamatory statements about individuals were constitutionally unprotected, at least against state libel lawsuits and likely state libel prosecutions (even though many state constitutions of the era expressly protected the freedom of the press). But beyond that my sense is that was a great deal of disagreement, even on the fundamental issues I noted above. This need not be true as to all constitutional provisions, but it appears to be true as to the Free Speech/Press Clause. It seems that the Framers — like many politicians since then (and likely before then) — were often happy to avoid difficult issues by enacting broad language that was generally agreed to at a high level of generality, but the specific meaning of which was contested. This is unfortunately a serious problem for original meaning analysis in those fields, though as I said I think there is some original meaning that can be gleaned as to particular questions.