|Congress shall make no law respecting
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.
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
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
In England, meanwhile,
thinking about free speech issues was strongly influenced by William Blackstone
who, in his Commenataries on the Laws of England (1769), wrote of
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 that 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.
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 they're asked more
specific questions such as "Should Americans be free to advocate communism?"
Most Americans 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?
5. What are some of
the costs of protecting free speech? Which are the most significant
costs in your opinion?
The burning of John Peter Zenger's The New York
Weekly Journal. Zenger was tried in 1735 on charges of seditious
libel, but what acquitted by a jury in what is a landmark in free
speech law. For information on the Zenger case see: ZENGER
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
3. The Balancing Approach
The Balancing Approach sees 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
3. Creating a More Adaptable and Stable
Community (The "Safety Valve" Function)
It is 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 identity--and, in the process perhaps,
find kindred spirits. Freedom of speech thus becomes an aspect of
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
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
for First Amendment Studies
Panoramic History of the First Amendment (Ostrowski)