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:
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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).
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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,