Congress
shall
make no law respecting
an establishment of
religion, or
prohibiting the
free exercise thereof; or abridging the
freedom of speech, or of the
press;
or the right of the people peaceably to
assemble, and to petition the
Government
for a redress of grievances. |
Introduction
Although
First
Amendment
jurisprudence is almost entirely a creation that
began in the 20th
century,
common law protection for free speech began much
earlier, in the 18th
and
19th centuries.
The
trial of
printer John
Peter Zenger in 1735 was a landmark in the
development of common law
protection
for free speech. In the Zenger case, a New
York jury returned a
verdict
of "not guilty" on a charge of seditious libel--in
contrast to the
practice
in England where juries were permitted only to
decide whether the
defendant
printed the allegedly libelous words. As a
result of the
precedent
set in the Zenger case, and the reluctance of
juries to support
prosecutions
for seditious libel, the common law of seditious
libel in America
became
generally unenforceable.
In
England,
meanwhile,
thinking about free speech issues was strongly
influenced by William
Blackstone
who, in his Commentaries on the Laws of
England (1769), wrote
of
the liberty of press as consisting "in laying no
previous restraints
upon
publications, and not in freedom from censure for
criminal matter when
published."
Blackstone's
view
of no
prior restraints formed the bare minimum of
protection that James
Madison
intended to protect when he, as a congressman from
Virginia in the
first
House of Representatives, drafted the Bill of
Rights. Of course,
most observers believe that Madison meant to
protect a great deal more
speech than Blackstone might have been inclined to
protect.
Madison's
original
draft
of the Bill of Rights contained two proposed
amendments dealing with
freedom
of speech. One proposed amendment said "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, one of the great
bulwarks of liberty,
shall
be inviolable." The other proposed amendment
of Madison read: "No state
shall violate the equal rights of conscience, or
of the press."
Congress,
however, did not support Madison's efforts to
apply free speech
protections
against the states, even though Madison called
that amendment the "most
valuable amendment on the whole list." (It
would not be until the
1920s, when the Supreme Court held the First
Amendment protections to
be
incorporated through the Fourteenth Amendment,
that freedom of speech
guarantees
would apply against the states.)
James Madison, drafter of the First
Amendment.
Just
seven
years after
adoption of the First Amendment, Congress passed
the Sedition Act of
1798.
The Act was enforced against Republican papers in
an effort to keep
Jefferson's
party from defeating the Federalists in the 1800
election.
Jefferson
won anyway, and the Sedition Act expired by its
own terms in 1801,
without
ever being tested by the Supreme Court. The
Act did, however,
touch
off a lively debate on free speech issues and
prompted both Madison and
Jefferson to write discourses on freedom of speech
and the press.
Although
a few
First Amendment
cases, often involving obscenity, were decided by
the federal courts in
the 1800s, it was not until World War I that the
Supreme Court really
began
to develop the jurisprudence that will be our
study.
Questions
1. If a
referendum
were held
today on whether to adopt the First Amendment, do you
think it would
pass?
2.
Polls show
that
most Americans support free speech in theory, but when
asked
more
specific questions such as "Should Americans be free
to advocate
communism?"
most persons polled are far less willing to support
free speech
values.
How to you explain this?
3.
Which of
the three
general approaches to First Amendment analysis is
best?
Why?
What are the advantages and disadvantages of each
approach?
4.
Which of
the values
served by the Free Speech Clause to you consider to be
the most
important?
Why?
5. What
are
some of
the costs of protecting free speech?
Which are the most
significant
costs in your opinion?
6. The First Amendment says that Congress shall
not abridge "the freedom of
speech"? Is that different that a prohibition on
abridging
"speech"?
7. What does the prohibition on abridging the freedom of the press
protect that
would not be protected by the prohibition on abridging
the freedom of
speech? Are
reporters protected in ways that other Americans are
not?
|
The burning of John Peter Zenger's The
New
York
Weekly Journal. Zenger was tried in 1735
on charges of
seditious
libel, but was acquitted by a jury in what is
a landmark in free
speech law. For information on the Zenger case
see: ZENGER
TRIAL
Three
Possible
Approaches to
First Amendment
Analysis
1. The Absolutist
Approach
The absolutist approach is
most often
associated with
Justice Black, who held that the First
Amendment meant exactly what it
says: that Congress shall make NO law
abridging the freedom of
speech.
Under this approach, the only question is
whether the action in conduct
is truly "speech" (and therefore protected)
or "conduct" (and therefore
subject to reasonable governmental
regulation. Even absolutists
such
as Justice Black recognized that words might
be so closely connected
with
producing a specific action (such as
entering into a contract with a
hitman
or yelling "Fire!" in a crowded theater) as
to be unprotected.
2. The Categorical
Approach
The categorical
approach
would
protect or not protect speech based on the
label that is attached to
the
speech in question. Certain categories
of speech are seen (such
as,
for example, obscenity or "fighting words"
or--at one time--commercial
speech) as falling entirely outside of First
Amendment protection,
whereas
most other categories of speech are either
highly protected or
protected
absolutely.
3. The Balancing
Approach
The balancing approach
rejects the
absolutist approach
as impracticable and the categorical
approach as artificial.
Balancers
believe that in every case courts should
weigh the individual's
interest
in free expression against the government's
interest in restricting the
speech in question. Most balancers
hold that the presumption
should
be in favor of free expression--that there
is a thumb on that side of
the
scale--which can only be overcome with a
showing of an especially
strong
governmental interest. (Some
commentators have
distinguished
between "definitional" and "categorical"
balancers. The
definitional
balancers favor the sort of ad hoc balancing
in which every individual
factual difference of a particular defendant
could affect the
balancing,
whereas the categorical balancers look at
the interests of speakers in
the category that the includes the
defendant.) |
Values
Served by
the Protecting
of Free Speech
1. The Discovery of
Truth
This value was first
suggested by
Milton, who first
suggested that when truth and falsehood are
allowed to freely grapple,
truth will win out.
2. Facilitating
Participation by
Citizens
in Political Decision-Making
It has
been
suggested that citizens
will not make wise and informed choices in
elections if candidates and
proponents of certain policies are
restricted in their ability to
communicate
positions.
3. Creating a
More Adaptable
and Stable
Community (The "Safety Valve" Function)
It has
been
suggested that a
society in which angry and alienated
citizens are allowed to speak
their
mind--"vent"--will be more stable, as
people will be less likely to
resort
to violence. It has also been
pointed out that allowing the
alienated
and discontented to speak freely enables
government to better monitor
potentially
dangerous groups who would otherwise act
more clandestinely.
4. Assuring
Individual
Self-Fulfillment
Free
speech
enables individuals
to express themselves, create and
identify--and, in the process
perhaps,
find kindred spirits. Freedom of
speech thus becomes an aspect of
human dignity.
5. Checking Abuse
of
Governmental Power
As
Watergate,
Irangate, Clintongate
(and all the other "gates") demonstrate,
freedom of the press enables
citizens
to learn about abuses of power--and then
do something about the abuse
at
the ballot box, if they feel so moved.
6. Promoting
Tolerance
It has
been argued
that freedom
of speech, especially through our
practice of extending
protection
to speech that we find hateful or
personally upsetting, teaches us to
become
more tolerant in other aspects of
life--and that a more tolerant
society
is a better society.
7. Creating a
More Robust
and Interesting
Community
A
community in
which free speech
is valued and protected is likely to be a
more energized, creative
society
as its citizens actively fulfill
themselves in many diverse and
interesting
ways. |
Links
First
Amendment Center
Reporters
Committee
for Freedom of the Press
Notes on Learning
Findings on Learning
|