My National Review Online piece this morning deals with the argument — made by some conservatives and libertarians — that we’re somehow losing traditionally understood First Amendment protections. One can certainly condemn particular government actions as unconstitutional, I argue; but if anything, free speech protections are on balance as strong now than they have ever been, and much stronger than they have been until the 1960s. The notion that the First Amendment was once super-strong and is now weak is a myth: For much of American history, the First Amendment was considerably narrower, even as to core political, religious, or social commentary, than it now is.
I’ve gotten a bunch of responses to this, which I wanted to react to, time permitting. Let me begin with one: Some people argue that whatever might have been done by the government in the late 1700s and 1800s, the Framers of the First Amendment understood the right as being broadly speech-protective, as the Congressional debates, the debates in state ratifying conventions or state legislatures that were considering the First Amendment, and The Federalist make clear. So even if politicians strayed early from this broad understanding of free speech, the Constitution’s original meaning does embody such an understanding.
Unfortunately, there’s very little historical evidence on this score. The Federalist says little about the freedom of speech or of the press (which makes sense, since it was an argument for ratifying the Constitution, not the Bill of Rights). There are no relevant records that I know of from the state ratifying conventions or state legislators. The Congressional debates on the First Amendment are very sparse, and say very little that’s conclusive about what the Free Speech/Press Clause was specifically going to mean. The very first controversy in which the Framing generation discussed the issue — the controversy over the Sedition Act of 1798 — showed deep divisions about the most fundamental principles here. There simply is no evidence of a consensus at the time about the meaning of the provisions (except perhaps that they prohibited administrative censorship and discretionary licensing schemes of the sort referred to as “prior restraints”).
So there is no lost Golden Age of the First Amendment from which we have strayed — either in post-Framing history, or at the time of the Framing. One can still support a broad understanding of the Free Speech/Press Clause, and criticize the Court for decisions that one sees as mistaken; I have often done this myself. But one shouldn’t argue that somehow there was a broad understanding in the 1700s or 1800s that we’ve retreated from. There’s simply no evidence of that.
UPDATE: Forgot to include this link to a good resource on Framing-era documents related to the Free Speech/Press Clause.
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