#1 [1992 CONSTITUTION OF THE UNITED STATES]
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FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Adoption and the Common Law Background
Madison's version of the speech and press clauses, introduced in
the House of Representatives on June 8, 1789, provided: ``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, as one of the
great bulwarks of liberty, shall be inviolable.''\1\ The special
committee rewrote the language to some extent, adding other provisions
from Madison's draft, to make it read: ``The freedom of speech and of
the press, and the right of the people peaceably to assemble and consult
for their common good, and to apply to the Government for redress of
grievances, shall not be infringed.''\2\ In this form it went to the
Senate, which rewrote it to read: ``That Congress shall make no law
abridging the freedom of speech, or of the press, or the right of the
people peaceably to assemble and consult for their common good, and to
petition the government for a redress of grievances.''\3\ Subsequently,
the religion clauses and these clauses were combined by the Senate.\4\
The final language was agreed upon in conference.
\1\1 Annals of Congress 434 (1789). Madison had also proposed
language limiting the power of the States in a number of respects,
including a guarantee of freedom of the press, Id. at 435. Although
passed by the House, the amendment was defeated by the Senate, supra,
p.957.
\2\Id. at 731 (August 15, 1789).
\3\The Bill of Rights: A Documentary History 1148-49 (B.
Schwartz ed. 1971).
\4\Id. at 1153.
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Debate in the House is unenlightening with regard to the meaning
the Members ascribed to the speech and press clause and there is no
record of debate in the Senate.\5\ In the course of debate, Madison
warned against the dangers which would arise ``from discussing and
proposing abstract propositions, of which the judgment may not be
convinced. I venture to say, that if we confine ourselves to an
enumeration of simple, acknowledged principles, the ratification will
meet with but little difficulty.''\6\ That the ``simple, acknowledged
principles'' embodied in the First Amendment have occasioned controversy
without end both in the courts and out should alert one to the
difficulties latent in such spare language. Insofar as there is likely
to have been a consensus, it was no doubt the common law view as
expressed by Blackstone. ``The liberty of the
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press is indeed essential to the nature of a free state; but this
consists in laying no previous restraints upon publications, and not in
freedom from censure for criminal matter when published. Every freeman
has an undoubted right to lay what sentiments he pleases before the
public; to forbid this, is to destroy the freedom of the press: but if
he publishes what is improper, mischievous, or illegal, he must take the
consequences of his own temerity. To subject the press to the
restrictive power of a licenser, as was formerly done, both before and
since the Revolution, is to subject all freedom of sentiment to the
prejudices of one man, and make him the arbitrary and infallible judge
of all controverted points in learning, religion and government. But to
punish as the law does at present any dangerous or offensive writings,
which, when published, shall on a fair and impartial trial be adjudged
of a pernicious tendency, is necessary for the preservation of peace and
good order, of government and religion, the only solid foundations of
civil liberty. Thus, the will of individuals is still left free: the
abuse only of that free will is the object of legal punishment. Neither
is any restraint hereby laid upon freedom of thought or inquiry; liberty
of private sentiment is still left; the disseminating, or making public,
of bad sentiments, destructive to the ends of society, is the crime
which society corrects.''\7
\5\The House debate insofar as it touched upon this amendment
was concerned almost exclusively with a motion to strike the right to
assemble and an amendment to add a right of the people to instruct their
Representatives. 1 Annals of Congress 731-49 (August 15, 1789). There
are no records of debates in the States on ratification.
\6\Id. at 738.
\7\4 W. Blackstone's Commentaries on the Laws of England 151-52
(T. Cooley 2d rev. ed. 1872). See 3 J. Story, Commentaries on the
Constitution of the United States 1874-86 (Boston: 1833). The most
comprehensive effort to assess theory and practice in the period prior
to and immediately following adoption of the Amendment is L. Levy,
Legacy of Suppression: Freedom of Speech and Press in Early American
History (1960), which generally concluded that the Blackstonian view was
the prevailing one at the time and probably the understanding of those
who drafted, voted for, and ratified the Amendment.
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Whatever the general unanimity on this proposition at the time
of the proposal of and ratification of the First Amendment,\8
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it appears that there emerged in the course of the Jeffersonian
counterattack on the Sedition Act\9\ and the use by the Adams
Administration of the Act to prosecute its political opponents,\10\
something of a libertarian theory of freedom of speech and press,\11\
which, however much the Jeffersonians may have departed from it upon
assuming power,\12\ was to blossom into the theory undergirding Supreme
Court First Amendment jurisprudence in modern times. Full acceptance of
the theory that the Amendment operates not only to bar most prior
restraints of expression but subsequent punishment of all but a narrow
range of expression, in political discourse and indeed in all fields of
expression, dates from a quite recent period, although the Court's
movement toward that position began in its consideration of limitations
on speech and press in the period following World War I.\13\ Thus, in
1907, Justice Holmes
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could observe that even if the Fourteenth Amendment embodied
prohibitions similar to the First Amendment, ``still we should be far
from the conclusion that the plaintiff in error would have us reach. In
the first place, the main purpose of such constitutional provisions is
`to prevent all such previous restraints upon publications as had been
practiced by other governments,' and they do not prevent the subsequent
punishment of such as may be deemed contrary to the public welfare .
. . . The preliminary freedom extends as well to the false as to the
true; the subsequent punishment may extend as well to the true as to the
false. This was the law of criminal libel apart from statute in most
cases, if not in all.''\14\ But as Justice Holmes also observed,
``[t]here is no constitutional right to have all general propositions of
law once adopted remain unchanged.''\15
\8\It would appear that Madison advanced libertarian views
earlier than his Jeffersonian compatriots, as witness his leadership of
a move to refuse officially to concur in Washington's condemnation of
``[c]ertain self-created societies,'' by which the President meant
political clubs supporting the French Revolution, and his success in
deflecting the Federalist intention to censure such societies. I. Brant,
James Madison--Father of the Constitution 1787-1800, 416-20 (1950). ``If
we advert to the nature of republican government,'' Madison told the
House, ``we shall find that the censorial power is in the people over
the government, and not in the government over the people.'' 4 Annals of
Congress 934 (1794). On the other hand, the early Madison, while a
member of his county's committee on public safety, had enthusiastically
promoted prosecution of Loyalist speakers and the burning of their
pamphlets during the Revolutionary period. 1 Papers of James Madison
147, 161-62, 190-92 (W. Hutchinson & W. Rachal eds. 1962). There seems
little doubt that Jefferson held to the Blackstonian view. Writing to
Madison in 1788, he said: ``A declaration that the federal government
will never restrain the presses from printing anything they please, will
not take away the liability of the printers for false facts printed.''
13 Papers of Thomas Jefferson 442 (J. Boyd ed. 1955). Commenting a year
later to Madison on his proposed amendment, Jefferson suggested that the
free speech-free press clause might read something like: ``The people
shall not be deprived or abridged of their right to speak, to write or
otherwise to publish anything but false facts affecting injuriously the
life, liberty, property, or reputation of others or affecting the peace
of the confederacy with foreign nations.'' 15 Papers, supra, at 367.
\9\The Act, Ch. 74, 1 Stat. 596 (1798), punished anyone who
would ``write, print, utter or publish . . . any false, scandalous and
malicious writing or writings against the government of the United
States, or either house of the Congress of the United States, or the
President of the United States, with intent to defame the said
government, or either house of the said Congress, or the said President,
or to bring them, or either of them, into contempt or disrepute.'' See
J. Smith, Freedom's Fetters--The Alien and Sedition Laws and American
Civil Liberties (1956).
\10\Id. at 159 et seq.
\11\L. Levy, Legacy of Suppression: Freedom of Speech and Press
in Early American History, ch. 6 (Cambridge, 1960); New York Times Co.
v. Sullivan, 376 U.S. 254, 273-76 (1964). But compare L. Levy, Emergence
of a Free Press (1985), a revised and enlarged edition of Legacy of
Suppression, in which Professor Levy modifies his earlier views, arguing
that while the intention of the Framers to outlaw the crime of seditious
libel, in pursuit of a free speech principle, cannot be established and
may not have been the goal, there was a tradition of robust and rowdy
expression during the period of the framing that contradicts his prior
view that a modern theory of free expression did not begin to emerge
until the debate over the Alien and Sedition Acts.
\12\L. Levy, Jefferson and Civil Liberties--The Darker Side
(Cambridge, 1963). Thus President Jefferson wrote to Governor McKean of
Pennsylvania in 1803: ``The federalists having failed in destroying
freedom of the press by their gag-law, seem to have attacked it in an
opposite direction; that is, by pushing its licentiousness and its lying
to such a degree of prostitution as to deprive it of all credit. . . .
This is a dangerous state of things, and the press ought to be restored
to its credibility if possible. The restraints provided by the laws of
the States are sufficient for this if applied. And I have, therefore,
long thought that a few prosecutions of the most prominent offenders
would have a wholesome effect in restoring the integrity of the presses.
Not a general prosecution, for that would look like persecution; but a
selected one.'' 9 Works of Thomas Jefferson 449 (P. Ford, ed. 1905).
\13\New York Times Co. v. Sullivan, 376 U.S. 254 (1964),
provides the principal doctrinal justification for the development,
although the results had long since been fully applied by the Court. In
Sullivan, Justice Brennan discerned in the controversies over the
Sedition Act a crystallization of ``a national awareness of the central
meaning of the First Amendment,'' id. at 273, which is that the ``right
of free public discussion of the stewardship of public officials . . .
[is] a fundamental principle of the American form of government.'' Id.
at 275. This ``central meaning'' proscribes either civil or criminal
punishment for any but the most maliciously, knowingly false criticism
of government. ``Although the Sedition Act was never tested in this
Court, the attack upon its validity has carried the day in the court of
history. . . . [The historical record] reflect[s] a broad consensus that
the Act, because of the restraint it imposed upon criticism of
government and public officials, was inconsistent with the First
Amendment.'' Id. at 276. Madison's Virginia Resolutions of 1798 and his
Report in support of them brought together and expressed the theories
being developed by the Jeffersonians and represent a solid doctrinal
foundation for the point of view that the First Amendment superseded the
common law on speech and press, that a free, popular government cannot
be libeled, and that the First Amendment absolutely protects speech and
press. 6 Writings of James Madison, 341-406 (G. Hunt. ed. 1908).
\14\Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis
original). Justice Frankfurter had similar views in 1951: ``The historic
antecedents of the First Amendment preclude the notion that its purpose
was to give unqualified immunity to every expression that touched on
matters within the range of political interest. . . . `The law is
perfectly well settled,' this Court said over fifty years ago, `that the
first ten amendments to the Constitution, commonly known as the Bill of
Rights, were not intended to lay down any novel principles of
government, but simply to embody certain guaranties and immunities which
we had inherited from our English ancestors, and which had from time
immemorial been subject to certain well-recognized exceptions arising
from the necessities of the case. In incorporating these principles into
the fundamental law there was no intention of disregarding the
exceptions, which continued to be recognized as if they had been
formally expressed.' That this represents the authentic view of the Bill
of Rights and the spirit in which it must be construed has been
recognized again and again in cases that have come here within the last
fifty years.'' Dennis v. United States, 341 U.S. 494, 521-522, 524
(1951) (concurring opinion). The internal quotation is from Robertson v.
Baldwin, 165 U.S. 275, 281 (1897).
\15\Patterson v. Colorado, 205 U.S. 454, 461 (1907).
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But in Schenck v. United States,\16\ the first of the post-World
War I cases to reach the Court, Justice Holmes, in the opinion of the
Court, while upholding convictions for violating the Espionage Act by
attempting to cause insubordination in the military service by
circulation of leaflets, suggested First Amendment restraints on
subsequent punishment as well as prior restraint. ``It well may be
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that the prohibition of laws abridging the freedom of speech is not
confined to previous restraints although to prevent them may have been
the main purpose . . . . We admit that in many places and in ordinary
times the defendants in saying all that was said in the circular would
have been within their constitutional rights. But the character of every
act depends upon the circumstances in which it is done. The most
stringent protection of free speech would not protect a man in falsely
shouting fire in a theater and causing a panic. . . . The question in
every case is whether the words used are used in such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.'' Justice Holmes
along with Justice Brandeis soon went into dissent in their views that
the majority of the Court was misapplying the legal standards thus
expressed to uphold suppression of speech which offered no threat of
danger to organized institutions.\17\ But it was with the Court's
assumption that the Fourteenth Amendment restrained the power of the
States to suppress speech and press that the doctrines developed.\18\ At
first, Holmes and Brandeis remained in dissent, but in Fiske v.
Kansas,\19\ the Court sustained a First Amendment type of claim in a
state case, and in Stromberg v. California,\20\ a state law was voided
on grounds of its interference with free speech.\21\ State common law
was also voided, the Court in an opinion by Justice Black asserting that
the First Amendment enlarged protections for speech, press, and religion
beyond those enjoyed under English common law.\22\ Development over the
years since has been uneven, but by 1964 the Court could say with
unanimity: ``we consider this case against the background of a profound
national commitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic and
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sometimes unpleasantly sharp attacks on government and public
officials.''\23\ And in 1969, it was said that the cases ``have
fashioned the principle that the constitutional guarantees of free
speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action.''\24\ This development
and its myriad applications are elaborated in the following sections.
\16\249 U.S. 47, 51-52 (1919) (citations omitted).
\17\Debs v. United States, 249 U.S. 211 (1919); Abrams v. United
States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466
(1920); Pierce v. United States, 252 U.S. 239 (1920); United States ex
rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407
(1921). A state statute similar to the federal one was upheld in Gilbert
v. Minnesota, 254 U.S. 325 (1920).
\18\Gitlow v. New York, 268 U.S. 652 (1925); Whitney v.
California, 274 U.S. 357 (1927). The Brandeis and Holmes dissents in
both cases were important formulations of speech and press principles.
\19\274 U.S. 380 (1927).
\20\283 U.S. 359 (1931). By contrast, it was not until 1965 that
a federal statute was held unconstitutional under the First Amendment.
Lamont v. Postmaster General, 381 U.S. 301 (1965). See also United
States v. Robel, 389 U.S. 258 (1967).
\21\And see Near v. Minnesota ex rel. Olson, 283 U.S. 697
(1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299
U.S. 353 (1937); Lovell v. Griffin, 303 U.S. 444 (1938).
\22\Bridges v. California, 314 U.S. 252, 263-68 (1941)
(overturning contempt convictions of newspaper editor and others for
publishing commentary on pending cases).
\23\New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
\24\Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
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Freedom of Expression: The Philosophical Basis
Probably no other provision of the Constitution has given rise
to so many different views with respect to its underlying philosophical
foundations, and hence proper interpretive framework, as has the
guarantee of freedom of expression--the free speech and free press
clauses.\25\ The argument has been fought out among the commentators.
``The outstanding fact about the First Amendment today is that the
Supreme Court has never developed any comprehensive theory of what that
constitutional guarantee means and how it should be applied in concrete
cases.''\26\ Some of the commentators argue in behalf of a complex of
values, none of which by itself is sufficient to support a broad-based
protection of freedom of expression.\27\ Others would limit the basis of
the First Amendment to one only among a constellation of possible values
and would
