Freedom of Speech and of the Press

Congress shall make no law... abridging the freedom of speech, or of the press....

Amendment I

What exactly did the Framers mean by "freedom of speech, or of the press"? Surprisingly, there is little definitively known about the subject. The debates in the First Congress, which proposed the Bill of Rights, are brief and unilluminating. Early state constitutions generally included similar provisions, but there is no record of detailed debate about what those state provisions meant. The Framers cared a good deal about the freedom of the press, as the Appeal to the Inhabitants of Quebec, written by the First Continental Congress in 1774, shows:

The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.

The statement mentions some of the values that the Founders saw as inherent in the principle of freedom of the press: the search and attainment of truth, scientific progress, cultural development, the increase of virtue among the people, the holding of governmental officials to republican values, the strengthening of community, and a check upon self-aggrandizing politicians. But broad statements such as this may tell us less than we would like to know about what "the freedom of the press" meant to the Founders as a rule of law, when the freedom would yield to competing concerns, or whether the freedom prohibited only prior restraints or also subsequent punishments.

There were very few reported Founding-era court cases interpreting the federal and state Freedom of Speech and of the Press Clause, and very few Founding-era political controversies that would have excited some detailed discussion of what the clauses meant. The governments of the time were quite small, and the statute books thin. There were few laws restricting commercial advertising. There was only one state law banning pornography, and that appears to have been unenforced until 1821. There were a few state blasphemy laws, but they were largely unenforced from the early 1700s until the 1810s. There were no bans on flag-burning, campaign spending, or anonymous speech. This may but does not necessarily mean that such speech was broadly believed to be constitutionally protected; then as today, the government did not ban all that it had the power to ban. But the paucity of such bans meant that few people in that era really had occasion to define what the constitutional boundaries of speech and press protection might be. The only speech restriction that was broadly enforced was traditional libel law. Defaming another person was understood to be constitutionally unprotected.

In fact, the most prominent free press debate of the years immediately following the Framing—the Sedition Act controversy—illustrated that there was little consensus on even as central an issue as whether the free press guarantee only prohibited prior restraints on publications critical of the government, or whether it also forbade punishment for "seditious" speech once it was made. In 1798, the country was fighting the Quasi War with France. The Federalist Party controlled all three branches of the federal government, and its members suspected many Republican party stalwarts of sympathizing with France and the French Revolution and thus of fomenting disloyalty. Congress consequently made it a crime to publish "any false, scandalous and malicious writing or writings...with intent to defame" the government, the Congress, or the President, "or to stir up sedition within the United States, or to excite any unlawful combinations...for opposing or resisting any law of the United States,...or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government." Notably, malicious falsehoods about the Vice President—Thomas Jefferson, who was a leading Republican—were not covered by the law, and the law was scheduled to expire on March 3, 1801, the day before Federalist President John Adams's term was to end. Several publishers were in fact convicted under the law, often under rather biased applications of the falsity requirement.

Then Federalist Congressman John Marshall, although doubtful that the Sedition Act was wise, nonetheless argued that the free press guarantee meant only "liberty to publish, free from previous restraint"—free of requirements that printers be licensed, or that their material be approved before publication. Under this view, which echoed the British law as expounded by Sir William Blackstone, criminal punishment after publication was constitutional. Others, such as James Madison, the principal drafter of the Bill of Rights, argued the opposite: "[T]his idea of the freedom of the press can never be admitted to be the American idea of it; since a law inflicting penalties on printed publications would have a similar effect with a law authorizing a previous restraint on them."

Likewise, Marshall and other Federalists argued that the freedom of the press must necessarily be limited, because "government cannot be...secured, if by falsehood and malicious slander, it is to be deprived of the confidence and affection of the people." Not so, reasoned Madison and other Republicans: even speech that creates "a contempt, a disrepute, or hatred [of the government] among the people" should be tolerated because the only way of determining whether such contempt is justified is "by a free examination [of the government's actions], and a free communication among the people thereon." It was as if half the country read the constitutional guarantee one way, and the other half, the other way.

The Founding generation undoubtedly believed deeply in the freedom of speech and of the press, but then, as now, these general terms were understood quite differently by different people. Many people did not think about their precise meanings until a concrete controversy arose; and when a controversy did arise, the analysis was often influenced by people's political interests as much as by their honest constitutional understanding.

A 1995 Supreme Court case, McIntyre v. Ohio Elections Commission, illustrates the continuing debate over the original meaning of the clause. The question in McIntyre was whether the government could outlaw anonymous electioneering. The majority dealt with the question based on the Court's twentieth-century case law and twentieth-century First Amendment theories. Justices Clarence Thomas and Antonin Scalia, the Court's most devoted originalists, however, did focus on the original meaning discussion but reached different results.

Both Justices recognized that there was "no record of discussions of anonymous political expression in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions." They both recognized that much political speech in the time of the Framers (such as The Federalist itself) was anonymous. Indeed, much political speech justifying resistance to Parliament before the Revolution was also anonymous. To Justice Thomas, the experience of the Founders in their own use of anonymous speech was dispositive of what they would have regarded as a vital part of the freedom of speech, particularly where political speech was at issue. Justice Scalia, however, who has a narrower view of what can be accepted as evidence of original intent apart from the text of the provision itself, argued that "to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right"—perhaps the legislatures simply chose not to prohibit the speech, even though they had the constitutional power to do so. Justice Thomas did produce evidence that some Founding-era commentators saw anonymity as constitutionally protected, Justice Scalia replied that many of these were mere "partisan cr[ies]" that said little about any generally accepted understanding. Justice Thomas found the evidence sufficient to justify reading the First Amendment as protecting anonymous speech. Justice Scalia did not think the historical evidence of what people did necessarily showed much about what people were seen as having a constitutional right to do. Instead, Scalia turned to American practices of the 1800s and the 1900s, a source that he considers authoritative where the original meaning is uncertain. A consensus on the original meaning on this subject thus remains elusive.

Despite the originalist debate between Justices Thomas and Scalia, today's free speech and free press law is not much influenced by original meaning. It is mostly the creature of the experience and thinking of the twentieth century, as the Court first began to hear a wide range of free speech cases only in the late 1910s. This approach has produced the following free speech rules:

1. As with all of the Bill of Rights, the free speech/press guarantee restricts only government action, not action by private employers, property owners, householders, churches, universities, and the like.

2. As with most of the Bill of Rights, the free speech/press guarantee applies equally to federal and state governments, which includes local governments as well as all branches of each government. In particular, the civil courts are subject to the First Amendment, which is why libel law and other tort law rules must comply with free speech/press principles. New York Times Co. v. Sullivan (1964).

3. The free speech and the free press clauses have been read as providing essentially equal protection to speakers and writers, whether or not they are members of the institutional press, and largely regardless of the medium—books, newspapers, movies, the Internet—in which they communicate. Newspapers enjoy no more and no fewer constitutional rights than individuals. The one exception is over-the-airwaves radio and television broadcasting, which has for historical reasons been given less constitutional protection. Reno v. ACLU (1997).

4. The free speech/press guarantee also extends to any conduct that is conventionally understood as expressive—for instance, waving a flag, wearing an armband, or burning a flag. It also extends to conduct that is necessary in order to speak effectively, as, for example, using money to buy a public address system or to buy advertising. Restrictions on independent campaign expenditures, for instance, raise First Amendment problems because restricting the use of money for speech purposes is a speech restriction. Stromberg v. California (1931); Buckley v. Valeo (1976); McConnell v. Federal Election Commission (2003).

5. The free speech/press guarantee extends not just to political speech but also to speech about religion, science, morality, social conditions, and daily life, as well as to art and entertainment. In the words of a 1948 case, "The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine." And the guarantee extends to low-brow expression (such as jokes or even profanity) as well as high-brow expression. Winters v. New York (1948); Cohen v. California (1971).

6. The free speech/press guarantee extends to all viewpoints, good or evil. There is no exception, for instance, for Communism, Nazism, Islamic radicalism, sexist speech, or "hate speech," whatever that rather vague term may mean. "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, Inc. (1974); New York Times Co. v. Sullivan (1964).

7. There is, however, a small set of rather narrow exceptions to free speech protection:

a. Incitement: Speech may be restricted if it is (i) intended to persuade people to engage in (ii) imminent unlawful conduct, and is (iii) likely to cause such imminent unlawful conduct. Outside this narrow zone, even speech that advocates lawbreaking is constitutionally protected. Brandenburg v. Ohio (1969).

b. False statements of fact: False statements of fact may generally be punished if they are knowing lies, though generally not if they are honest mistakes (even unreasonable mistakes). There are, however, some situations where even honest mistakes can be punished, and a few where even intentional lies are protected. Gertz v. Robert Welch, Inc. (1974).

c. Obscenity: Hard-core pornography is punishable if (i) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a shameful or morbid interest in sex or excretion; (ii) the work depicts or describes, in a way that is patently offensive under contemporary community standards, sexual conduct specifically defined by the applicable state law; and (iii) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California (1973).

d. Child pornography: Sexually themed live performances, photographs, and movies that were made using actual children may be punished even if they do not fit within the obscenity test. This does not cover digitized pictures, drawings, or text materials, which are constitutionally protected unless they are obscene. The Court has reasoned that child pornography is unprotected because it hurts the children involved in its making, so the exception only covers cases where actual children were indeed involved. Ashcroft v. Free Speech Coalition (2002).

e. Threats: Speech that is reasonably perceived as a threat of violence (and not just rhetorical hyperbole) can be punished. Virginia v. Black (2003).

f. Fighting words: Face-to-face insults that are addressed to a particular person and are likely to cause an imminent fight can be punished. More generalized offensive speech that is not addressed to a particular person cannot be punished even if it is profane or deeply insulting. Cohen v. California (1971).

g. Speech owned by others: Intellectual property laws, such as copyright law, may restrict people from using particular expression that is owned by someone else; but the law may not let anyone monopolize facts or ideas. Harper & Row Publishers, Inc. v. Nation Enterprises (1985).

h. Commercial advertising: Commercial advertising is constitutionally protected, but less so than other speech (political, scientific, artistic, and the like). Misleading commercial advertising may be barred, whereas misleading political speech cannot be. Commercial advertising may also be required to include disclaimers to keep it from being misleading; such disclaimers can't be required for political speech. It is an open question whether commercial advertising may be restricted for paternalistic reasons, because of a fear that people will learn accurate information but will do bad things based on that information—for example, buy more alcohol, smoke more, or use more electricity when there is a shortage. This exception applies only to speech that proposes a commercial transaction between the speaker and the listener; it does not apply to speech that is merely sold in commerce, such as books, videos, and databases. 44 Liquormart, Inc. v. Rhode Island (1996).

8. All of the preceding rules apply to restrictions that relate to what the speech communicates—to the tendency of the speech to persuade people, offend them, or make them feel unsafe. Content-neutral restrictions that relate to the noncommunicative impact of speech—for instance, noise, obstruction of traffic, and so on—are easier to justify. The test for content-neutral restrictions is complicated, but the key point is that the government may generally impose content-neutral "time, place, and manner restrictions" so long as those restrictions leave open ample alternative channels for communication. All such restrictions, however, must be neutral as to content: if they treat speech differently based on content, they are generally unconstitutional even if they focus only on the time, place, and manner of the speech. Ward v. Rock Against Racism (1989).

9. Finally, all of the preceding rules apply to restrictions that are imposed by the government acting as sovereign and backed by the threat of jail terms, fines, or civil liability. They also apply to the government controlling what is said in "traditional public fora," such as parks, streets, sidewalks, or the post office. But when the government is acting as, for instance, (a) employer, (b) K–12 educator, (c) proprietor of government property other than traditional public fora, (d) subsidizer, (e) speaker, or (f) regulator of the airwaves, it has broader (though not unlimited) authority. The rules for that, unfortunately, are too elaborate to set forth here. Connick v. Myers (1983); Tinker v. Des Moines Independent Community School District (1969); ISKCON v. Lee (1992); Rosenberger v. Rector and Visitors of the University of Virginia (1995); FCC v. League of Women Voters of California (1984).

Free speech/press law is sometimes called the tax code of constitutional law. The discussion above suggests how complex the law is, but while some of the complexity may be needless, much of it is inevitable. Communication is in many ways the most complicated of human activities, and no simple rule can properly deal with all the different kinds of harms that it can cause—or all the different kinds of harms that restricting communication can cause.

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Eugene Volokh
Gary T. Schwartz Professor of Law
University of California, Los Angeles School of Law