Rebublican Law Journal
Vol. 173 No. 214, pp. 127-135, August 1, 1997

Historic & Modern Foundation
of Freedom of Expression,
Speech & Press

By Howard Hobbs JD, Editor, The Republican Law Journal

WASHINGTON D.C. - On June 8, 1789, when the original version of the speech and press clauses of the U.S. Constitution were introduced in the House of Representatives by James Madison, the wording was -

'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 then rewrote the language adding other provisions from Madison's draft. Then 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 again to read-

'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.

House debate on the issue is unclear as to what meaning its Members gave to the Speech and Press clause. The record in the Senate is also silent on this point.5

Madison urged simplicity when he told Congress '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

It is not surprising that the First Amendment has experienced a great deal of controversy in the courts because of the way it is worded. The difficulties are likely due to the form of the abreviated language finally agreed upon in president Jackson's time.

The only authority on the issue at the time was the common law view of British jurist William Blackstone. He had written 'The liberty of the press is indeed essential to the nature of a free state...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...necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty.'7

The general unanimity on this proposition was current in the nation at the time of the proposal of and ratification of the First Amendment.8 Judicial opinion only began to diverge in the course of the Jeffersonian counterattack on the Sedition Act.9

The Adams Administration then used 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.

The developed legal 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, is only of the most recent origin. Yet, the Court's movement toward that position began with its consideration of limitations on speech and press in the period following World War I.13

By the year 1907, Justice Holmes had observed 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

Justice Holmes also observed, '[t]here is no constitutional right to have all general propositions of law once adopted remain unchanged.'15

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 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

Then the Court's assumption that the Fourteenth Amendment restrained the power of the States to suppress speech and press gave rise to new doctrines. 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

Then, state common law was voided, when the Court in an opinion by Justice Black asserted that the First Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English common law enunciated by William Blackstone.22

Development since that time has been dubious, at most. By the year 1964 the Court was unanimous in such statements as '...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 sometimes unpleasantly sharp attacks on government and public officials.'23

In 1969, the Court was writing opinions in which they claimed ' 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 permutatrion was became elaborated in most all of the Court's subsequent opinions.

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 therefore limit coverage or degree of protection of the speech and press clauses. For example, one school of thought believes that, because of the constitutional commitment to free self-government, only political speech is within the core protected area.28

Some commentators tend to define more broadly the concept of political than one might suppose from the word alone. Others recur to the writings of Milton and Mill and argue that protecting speech, even speech in error, is necessary to the eventual ascertainment of the truth, through conflict of ideas in the marketplace, a view skeptical of our ability to ever know the truth.29

A broader-grounded view is variously expounded by scholars who argue that freedom of expression is necessary to promote individual self-fulfillment, such as the concept that when speech is freely chosen by the speaker to persuade others it defines and expresses the self promotes his liberty.30

The concept of self-realization the belief that free speech enables the individual to develop his powers and abilities and to make and influence decisions regarding his destiny.31

The literature is extant and no doubt Supreme Court Justices are influenced by it, and yet the decisions consistently fail to clearly reflect any principled philosophy.


[Footnote 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.

[Footnote 2] Id. at 731 (August 15, 1789).

[Footnote 3] The Bill of Rights: A Documentary History 1148-49 (B. Schwartz ed. 1971).

[Footnote 4] Id. at 1153.

[Footnote 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.

[Footnote 6] Id. at 738.

[Footnote 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.

[Footnote 8] James Madison advanced views baased upon libertarian reasoning. He also exerted leadership in a move to refuse officially to concur in Washington's condemnation of ''[c]ertain self-created societies,'' e.g.,political clubs supporting the French Revolution. 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.

[Footnote 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).

[Footnote 10] Id. at 159 et seq.

[Footnote 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.

[Footnote 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).

[Footnote 13] New York Times Co. v. Sullivan, '...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).

[Footnote 14] Patterson v. Colorado, 205 U.S. 454, 462 (1907). 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).

[Footnote 15] Patterson v. Colorado, 205 U.S. 454, 461 (1907).

[Footnote 16] 249 U.S. 47, 51-52 (1919) (citations omitted).

[Footnote 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).

[Footnote 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.

[Footnote 19] 274 U.S. 380 (1927).

[Footnote 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).

[Footnote 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).

[Footnote 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).

[Footnote 23] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[Footnote 24] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

[Footnote 25] While expression is not found in the text of the First Amendment, it is used herein, first, as a shorthand term for the freedoms of speech, press, assembly, petition, association, and the like, which are comprehended by the Amendment, and, second, as a recognition of the fact that judicial interpretation of the clauses of the First Amendment has greatly enlarged the definition commonly associated with ''speech,'' as the following discussion will reveal. The term seems well settled, see, e.g., T. Emerson, The System of Freedom of Expression (1970), although it has been criticized. F. Schauer, Free Speech: A Philosophical Inquiry, 50-52 (1982). The term also, as used here, conflates the speech and press clauses, explicitly assuming they are governed by the same standards of interpretation and that, in fact, the press clause itself adds nothing significant to the speech clause as interpreted, an assumption briefly defended infra, pp.1026-29.

[Footnote 26] T. Emerson, The System of Freedom of Expression 15 (1970). The practice in the Court is largely to itemize all the possible values the First Amendment has been said to protect. See, e.g., Consolidated Edison Co. v. PSC, 447 U.S. 530, 534-35 (1980); First National Bank of Boston v. Bellotti, 435 U.S. 765, 776-77 (1978).

[Footnote 27] T. Emerson, The System of Freedom of Expression 6-7 (1970). For Emerson, the four values are (1) assuring individuals self- fulfillment, (2) promoting discovery of truth, (3) providing for participation in decisionmaking by all members of society, and (4) promoting social stability through discussion and compromise of differences. For a persuasive argument in favor of an ''eclectic'' approach, see Shriffrin, The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment, 78 Nw. U.L. Rev. 1212 (1983). A compressive discussion of all the theories may be found in F. Schauer, Free Speech: A Philosophical Inquiry (1982).

[Footnote 28] See, A. Meiklejohn, Political Freedom (1960); Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971); BeVier, The First Amendment and Political Speech: An Inquiry Into the Substance and Limits of Principle, 30 Stan. L. Rev. 299 (1978). This contention does not reflect the Supreme Court's view. ''It is no doubt true that a central purpose of the First Amendment 'was to protect the free discussion of governmental affairs.' . . . But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters--to take a nonexclusive list of labels--is not entitled to full First Amendment protection.'' Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977).

[Footnote 29] The ''marketplace of ideas'' metaphor is attributable to Justice Holmes' opinion in Abrams v. United States, 250 U.S. 616, 630 (1919). See Scanlon, Freedom of Expression and Categories of Expression, 40 U. Pitt. L. Rev. 519 (1979).

The theory has been the dominant one in scholarly and judicial writings. Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 967-74 (1978).

[Footnote 30] E.g., Baker 'Process of Change and the Liberty Theory of the First Amendment' 55 S. Cal. L. Rev. 293 (1982); Baker, Realizing Self-Realization: Corporate Political Expenditures and Redish's The Value of Free Speech, 130 U. Pa. L. Rev. 646 (1982).

[Footnote 31] Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591 (1982).


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