Several correspondents e-mailed me about my NRO piece to argue that I was wrong to talk about the First Amendment cases interchangeably with cases challenging state laws under state free speech guarantees. Let me briefly defend my decision to do that.
To begin with, a bit of historical background: The Bill of Rights was pretty clearly intended to apply only to the federal government. The First Amendment, by its terms, covers only “Congress”; the other amendments were likewise intended to bind only the federal government; and that was the general (though not unanimous) understanding of the Amendment throughout the first half of the 19th century. The post-Civil War amendments were the first to bind the states, and the Fourteenth Amendment was eventually (first controversially, now less so) interpreted as applying most of the Bill of Rights, including the First Amendment, as against the states. Before that happened (roughly in the 1920s as to the Free Speech/Press Clause), free speech/press cases challenging state laws were brought under state constitutional provisions, while similar cases challenging federal laws were brought under the First Amendment.
This brings up the argument that I’ve heard from some people: The First Amendment, they argue, was intended to be an absolute restraint on Congress, while state free speech/press guarantees were not intended to be absolute (and in fact their language is often less categorical than the language of the First Amendment). The Court, the argument continues, was wrong to incorporate the First Amendment (an incorporation that would make an absolutist view impossible, because state governments must have the power to restrict some speech, such as libel, threats, and so on). The right solution is to leave the First Amendment as a categorical restraint on federal power, and leave state speech restrictions to state courts applying the less absolute state constitutional restrictions. And this means that there was a Golden Age of absolute, textually clear freedom of speech and of the press (the point against which I was arguing) — though only against Congressional suppression.
But I don’t think this is right. Most importantly, from the late 1700s on, the First Amendment was not seen by the courts, or as best I can tell by any broad consensus in the other branches, as an absolute protection. There were very few First Amendment cases in the federal courts, largely because the federal government enacted few laws generally, whether speech restrictions or otherwise; it’s thus hard to speak of a specifically First Amendment tradition, as opposed to a free speech tradition more broadly. But the tradition that did exist was certainly not an absolutist or even very broad tradition.
In the late 1790s, lower federal courts (including in opinions by the Supreme Court Justices riding circuit) upheld the Sedition Act — a restriction on political speech — against First Amendment challenges. From the 1870s on, the Supreme Court upheld Congress’s essentially unlimited power to exclude various kinds of speech from the mails. In the early 1880s, the Supreme Court upheld Congress’s power to prohibit (on pain of criminal punishment) political contributions by federal employees. In the late 1910s, of course, the Supreme Court upheld restrictions on antiwar speech. Only in the middle of the 20th century did the Court begin to meaningfully constrain federal power to restrict speech — incidentally at the same time that it was applying similar constraints to the states under the Fourteenth Amendment.
What’s more, while there was some talk in the late 1700s and very early 1800s — including by Madison and Jefferson — arguing that the First Amendment was an absolute constraint, and was quite different from the state provisions, that was never a consensus view. By the middle of the 19th century, leading constitutional commentators (chiefly U.S. Supreme Court Justice Joseph Story (1833) and Michigan Supreme Court Justice Thomas M. Cooley (1868)) were treating the First Amendment as being (1) not absolute, and (2) part of the same constitutional tradition as the state free speech/press guarantees.
So my point remains: There never was a golden age of First Amendment textualism or absolutism in American history, even if you limit the First Amendment to Congressional power. Courts never took this view; some important Framers did take this view in the late 1700s, and some commentators shortly afterwards, but it was never the accepted legal position. Such an absolute view would almost certainly not have been tenable even if it had been adopted, since it would have foreclosed Congress from restricting threats, libel, false advertising, etc. in the District of Columbia or in the Territories (after all, the Bill of Rights restrains all the Congressional powers, including the District Clause and the Territories Clause powers, alongside the war power, the Commerce Clause power, and the others). But it was never the dominant legal view in the U.S. in any event. Free speech is in practice more protected today against Congress than it has been for most of the nation’s history.
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