History & Values of the First Amendment

1. History & Values of the First Amendment Week 3 Communications Law Seminar

2. What kind of speech does or should the 1st Amdt (1A) protect? Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the gov’t for a redress of grievances. • Text of 1A gives no clear guidance regarding what kind of speech is to be protected or against what kinds of gov’t actions • Is the 1A an “absolute” – i.e., can Congress really make NO LAWS about speech? • What about laws regulating the sale of fraudulent securities? Misleading commercial advertising? Perjury? • The phrase “abridging the freedom of speech” is more a term of art than an absolute ban • Over time, SCT has interpreted 1A to prohibit other gov’t actors besides CONGRESS from regulating speech

3. Methods of constitutional (1st Amdt) interpretation (Bobbitt) – Bunker p. 60 • Textual – meaning of 1A text as it would be interpreted by an average person - (generally unhelpful in 1A cases) • Historical – intent of 1A Framers • Also use historical context in which 1A adopted & 1A cases decided • Structural – infer rules from relationship between 1A and other parts of the Constitution • E.g., relationship of 1A and Article II granting Executive Power • Doctrinal – applying rules generated by precedent (i.e., earlier cases) • Ethical – deriving rules from moral commitments reflected in Constitution • E.g., what values are said to underlie the 1A • Prudential – arguments balancing costs/benefits of a particular rule

4. History of speech regulation in 15th-18th century England Treason: Plotting the death of the king, making war against the king or aiding the kings enemies. • Printed material/speeches critical of the King could amount to “plotting” the king’s death or “aiding” his enemies. Death penalty imposed. Licensing Schemes: Printed material had to be submitted for licensor approval prior to publication. Publication without a license could result in criminal punishment. • Justification – stability and peace of the realm • Censors had no standards to follow and often made arbitrary decisions. Seditious Libel: Written/oral defamations of government officials or more generally writings critical of government action could be criminally punished as causing a breach of the peace. • Truth was not a defense • Speaker’s/author’s “bad intent” was presumed from the fact of authoring the article/making the speech

5. State of English law at the time of the formation of the early American Republic • Licensing systems = prior restraints or previous restraints • They are called this because they required prior approval before publication (unlike the law of seditious libel which punished a speaker AFTER they had spoken) • Any form of regulation that STOPS speech BEFORE it occurs is a prior restraint. • By the time 1A was adopted, licensing systems had fallen out of favor in England. Thought to be too restrictive of speech because: • Arbitrary – subject to one licensor’s whims and prejudices • Didn’t allow the speech to occur at all – total loss to community • Took away a speaker’s right to a jury trial if tried for a crime • Wasn’t punishing speakers with the crime of seditious libel also problematic?

6. The First Amendment at the Founding When the Framer’s adopted 1A – did they mean to adopt the English understanding (previous slide) or did they also mean to prohibit punishment of seditious libel? • History doesn’t give us a clear answer. • No clear intent to abolish seditious libel prosecutions in the states. • Laws punishing seditious libel existed BUT they were rarely used. • There was a thriving press practice of criticizing government, especially during the Revolutionary War • Sedition Act of 1798 – enacted after 1A • Congress passed law punishing seditious libels aimed at federal officials (except Vice President) • Patterson v. Colorado (1907) – SCT intimated that 1A was limited to protecting against prior restraints

7. Using First Amendment values to inform free speech inquiries • Text and History only tell us so much about the type or quality of expression the 1st Amendment protects • It is common to look to the “values” that underlie the 1stAmendment to (1) settle the prior restraint vs . seditious libel debate from earlier, and (2) generally determine the scope and extent of protection of free expression • In other words, these values help us to discuss “why” we protect free speech and what kinds of rules we should formulate to constrain gov’t action

8. Traditional values associated with the First Amendment – The Search for Truth Protection of free expression is necessary to the search for truth. • What is “truth?” • Is there such as thing as “objective truth?” See Williams (in Bunker) • Does it depend on context? If so, how does that matter to whether we regulate expression? • What if the speech at issue is objectively false – i.e., “the world is flat” – should we protect such speech under this theory? • Does “truth” always emerge from the clash of ideas that this theory presumes? • Is it a problem if “truth” does not emerge?

9. Traditional values associated with the First Amendment – Self-Governance Purpose of 1A is to protect speech that facilitates the operation of the democratic process/promotes the public welfare. • What is speech related to the democratic process? • Does Meikeljohn mean to limit protection only to speech overtly on political topics? What are the ramifications of such a limitation? • Does Blasi’s “checking value” thesis make more sense of this value than Meikeljohn? • How does this value shed light on the seditious libel debate – does it suggest that the 1st Amendment should protect against seditious libel prosecutions in addition to protecting against prior restraints?

10. Traditional values associated with the First Amendment – Autonomy We can locate use the autonomy rationale to locate the free speech “right” in either the speaker or the listener/audience: • Speaker – Richards: • Autonomy involves a speaker’s right to “create and express symbolic systems … Freedom of expression permits and encourages the exercise of these capacities.” • Speaker & Listener/Audience – Wells: • Autonomy involves the “integrity of our thought processes as individuals and members of a community.” Free expression law should protect the public exercise of reason that allows us to exercise of our thought processes. • How are these autonomy rationales different from each other? • How are they different from the other values? • Are there problems in using “autonomy” to justify protecting expression?

11. Putting it all together – using tools of constitutional interpretation to interpret free speech cases • Reading and understanding free speech law requires putting together a lot of different factors. • Of primary importance – the DOCTRINE – i.e., the rules and decisions made by the SCT • But it is also important to understand how SCT came to that doctrine in light of historical events or pragmatic concerns about human behavior • May also have to ask what “values” of free expression SCT decision serves • These values may differ depending on a particular context • E.g., does a situation involve protestors wanting to speak in public or prisoners wanting to speak in a secure area • Note – SCT has never adhered to any particular theory or value and has tended to be contextual here.