Freedom of Speech in America’s Unwritten Constitution (With Some Thoughts on Volokh, Posner, and Scalia)

My new book, America’s Unwritten Constitution: The Precedents and Principles We Live By, is organized around different techniques of constitutional interpretation. Throughout the book, I use the freedom of expression as a testing ground for various interpretive approaches. As I explain in the book’s Introduction:

Textually, [the freedom of speech] appears in the First Amendment, but if everything depends solely on this explicit patch of constitutional text, which became part of the Constitution in 1791, then the First Congress in 1789 and 1790 was free to pass censorship laws if it so chose. But surely the First Congress had no such power, I argue. And surely states have never had proper authority to shut down political discourse even though the First Amendment does not expressly limit states. The robust, wide-open, and uninhibited freedom of American citizens to express their political opinions is a basic feature of America’s unwritten Constitution that predates and outshines the First Amendment. Or so I claim. I do not prove this specific claim in a single chapter devoted solely to free speech. Rather, free speech pops up at several points in the book, each time in connection with a different method for finding America’s unwritten Constitution. In Chapter 1, I invite readers to read between the lines of the Constitution — to see what principles are implicit in the document, read as a whole, even if these principles are nowhere explicitly stated in any specific clause. In the middle of this chapter I show that free speech is one implicit principle among many. In Chapter 2, I invite readers to pursue a wholly different methodological line of inquiry: Look away from the text altogether, if only momentarily, and instead ponder the specific historical procedures and protocols by which the Constitution was in fact enacted. It turns out that this method gives us a second and distinct reason for believing that an unwritten constitutional right of free speech preceded and surpassed the First Amendment. Chapter 3 offers a third way of thinking about unwritten constitutionalism, focusing on the actual rights that ordinary twenty-first century Americans embody and embrace in their daily lives. One of those rights is the freedom of speech. Further support for a robust right of free speech appears when we take yet another methodological tack by reading the Constitution through the lens of modern case law — the approach showcased in Chapter 4. Later chapters illustrate still more ways to find the unwritten Constitution, and in these chapters free speech occasionally pops up yet again.

My opening chapter explains that robust free speech on all political topics is implicit in the Constitution’s very structure, in which the people are sovereign, and government officials are merely their agents/servants. In a system of free elections, challengers must be free to vigorously opine against incumbents and vice versa. This approach is old hat. Many scholars before me, from Alexander Meiklejohn to Charles Black to Robert Bork, have made similar arguments, and these arguments have generally prevailed in the modern Supreme Court.

In Chapter 2, I defend free speech a different way, focusing not on the Constitution’s general structure and conceptual entailments, but on the very specific way in which the document actually sprang to life in 1787-88, via an extraordinary outpouring of actual free speech — robust, wide-open, and uninhibited in actual historical fact. In other words, free speech was baked into the constitutional cake; a vigorous version of this right was part of the very birth logic that produced the Constitution itself. Here is a brief excerpt:

The law of our land came to life on a continent awash with speech and through a process that teemed with talk of the freest sort. In an extraordinary efflorescence of accusations, addresses, allegories, analyses, appeals, arguments, assemblies, boasts, books, canards, cartoons, complaints, conversations, costumes, debates, deliberations, denials, diatribes, effigies, encomiums, essays, exaggerations, exegeses, exhortations, flags, harangues, insults, lamentations, letters, misstatements, opinions, paintings, pamphlets, parades, petitions, plays, pleas, poems, prayers, prophesies, quips, sermons, songs, speeches, squibs, symbols, toasts, and writings of every sort, Americans practiced an amazingly vigorous freedom of expression in the course of enacting the Constitution. Sharp-elbowed political maneuvering there was aplenty; widespread punishment of exuberant expression there was not.

In a footnote to this passage, I blow a kiss in Eugene’s direction, for his 2009 article in the Georgetown Law Journal discussing the importance of “symbolic expression” — paintings, flags, processions, liberty poles, costumes, effigies, and so on — and surveying Founding-era legal protections of these forms of expression. I also note, with a citation to Pauline Maier, the leading historian of ratification, that the burning of effigies was part of the year-long ratification process.

Now flash forward to Richard Posner’s recent critique of Antonin Scalia in The New Republic:

The relevant constitutional provision — “Congress shall make no law abridging … the freedom of speech” — does not mention non-verbal forms of political protest, and Scalia and Garner insist that legal terms be given their original meaning lest the intent of the legislators or the constitution-makers be subverted by unforeseen linguistic changes. “In their full context,” they assert, “words mean what they conveyed to reasonable people at the time they were written — with the understanding that general terms may embrace later technological innovations.” That approach is inconsistent with interpreting “freedom of speech” to include freedom to burn flags, since the eighteenth-century concept of freedom of speech was much narrower than the modern concept, and burning cloth is not a modern technological innovation. According to William Blackstone, whom Scalia and Garner treat as an authority on American law at the time of the Constitution, freedom of speech forbids censorship in the sense of prohibiting speech in advance, but does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious.

Now, Posner scores many points against Scalia, but this passage is not his finest hour. Here is what I say about this precise topic in Chapter 4 of my new book, in my discussion of the landmark Warren Court opinion of New York Times v. Sullivan:

Even some scholars who relished Sullivan’s result clucked that the justices had ventured far beyond the constitutional text and its original public meaning in order to do justice. According to these scholars, Blackstone’s Commentaries had defined “liberty of the press” merely as a promise that government would not deploy licensing systems requiring would-be printers to win official approval before opening up shop. Alabama had not attempted any scheme of press licensing or “prior restraint.” Instead, the state had allowed the Times to circulate freely, and had merely responded to what state law saw as the Times‘s wanton abuse of the liberty that the newspaper had enjoyed.

This criticism of the landmark Sullivan decision misses the point — indeed, misses many points. True, Blackstone defined press freedom narrowly: “The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. 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: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.” It is also true that leading Americans in the early Republic often invoked this stingy definition. Most notably, Federalist Party supporters of the 1798 Sedition Act leaned heavily on Blackstonian ideas in claiming that the act was perfectly constitutional, as it imposed no licensing scheme or pre-publication censorship.

But America’s free expression regime meant much, much more than the partisan supporters of the Sedition Act admitted. For starters, let’s recall that virtually absolute freedom of political expression formed part of the process by which the Constitution sprang to life — part of the document’s very enactment — even before the phrase “the freedom of the press” was added as a post-script. Textually, the First Amendment protected not merely “freedom of the press” but also “freedom of speech.” Speech freedom had never been understood in early America as confined to a no-licensing/no-prior-restraint principle, and it is hard to see how anyone at the Founding who took even a moment to muse on the differences between the words “speech” and “press” could have thought otherwise. It was at least imaginable that an eighteenth-century government might require that anyone seeking to operate a printing press — not exactly a household item back then — first obtain an official permit. (Indeed, earlier English governments had done just that.) But what would it even mean for government to insist that a person needed a permit to open his mouth and speak?

Ordinary American citizens’ freedom of speech derived from sources different and deeper than press freedom. The phrase “freedom of speech” built upon English freedom of speech and debate in Parliament. In eighteenth-century England, however, only members of Parliament could opine without fear. In post-Independence America, all citizens could do so — because in America, We, the People were sovereign. Under the Constitution’s legal hierarchy, “We” did not answer to Parliament. Rather, parliaments (Congresses and state legislatures) answered to Us. Thus, the First Amendment textualized the American Constitution’s structural postulate of popular sovereignty. Here, the people would rule and were therefore free to think and opine as they wished.

The chief draftsman of the First Amendment, James Madison, said all this — first in a brief aside at the very moment he introduced his draft amendment in Congress; more clearly in 1794, when he declared that, “If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people;” and most emphatically of all when he explained in 1799 why the Sedition Act of 1798 was a constitutional abomination. . . .

In their first opportunity to weigh in on the matter, the American electorate sided with Madison by vaulting his mentor and fellow free-speech champion Thomas Jefferson into the executive mansion and by sweeping the Jefferson-Madison party into congressional power. These self-described Republicans immediately repudiated the 1798 precedent — Congress by refusing to revive the law when it lapsed thanks to a sunset clause, and Jefferson by pardoning every person who had been convicted under the law. On July 4, 1840, Congress made further amends by reimbursing fines that had been imposed. According to the accompanying committee report, the 1798 act was “unconstitutional, null, and void . . . . No question connected with the liberty of the press . . . was ever more generally understood, or so conclusively settled by the concurring opinions of all parties, after the heated political contests of the day had passed away.”

And speaking of making amends — and amendments — let’s not forget that the framers of the Fourteenth Amendment guaranteed a broad freedom of expression against any government that tried to suppress opinionated citizens, whether ex ante or ex post. Speech was perhaps the “privilege” most often mentioned in the Thirty-ninth Congress, which declared that states must henceforth honor all fundamental “privileges [and] immunities of citizens.” In the previous decade, the Republican Party had made its core commitments unmistakably clear, as summarized in the 1856 campaign slogan, “Free Speech, Free Press, Free Men, Free Labor, Free Territory, and Fremont.”

To anyone with any real sense of the document and its history, the propriety of protecting a Yankee newspaper from an all-white Southern government hostile to outside agitators (and to in-state blacks seeking interstate alliances) was obvious. Sullivan was an uncanny case of deja vu, as democratically deficient Southern governments in the 1950s and early 1960s tried to return to their playbook of the 1850s and 1860s. Sullivan’s specific doctrinal rules protecting those opining against the government and the status quo strongly reflected the core constitutional values that had been present at the creation and pointedly reaffirmed after the Civil War.

Now, it is hard to blame Posner for being unaware of evidence presented in a book still in page proofs when he set out to skewer Scalia. It is easier to blame Posner for completely ignoring earlier versions of this evidence in my previous two books, and in a whole slew of articles that I wrote over the last twenty years. But most curious of all is the fact that Posner overlooked a brilliant analysis of this very issue in a 1986 article in the Suffolk Law Review. Here is the brilliant passage that Posner overlooked:

Writing shortly before the American Revolution, Blackstone had defined freedom of the press very narrowly — as meaning just freedom from ‘prior restraint,’ by which he meant censorship. Criminal punishment for speech or writings critical of the government — not to mention for obscene, blasphemous, and defamatory speech or writing — was permissible. The rationale for the distinction between censorship and criminal punishment was that the former was administrative, while the latter could be imposed only after a trial by jury, and Blackstone apparently trusted juries not to convict unless the defendant was abusing the right of free expression. It is true that censorship is not the only form of prior restraint; another is the injunction, which is issued without a trial by jury but by a judge presumably more independent of the political branches of the government than a censor would be. If freely allowed in cases involving speech or press, the injunction might have come to play the same role in preventing criticism of government that the labor injunction played in preventing strikes before the Norris-LaGuardia and Wagner Acts took this weapon away from the courts. The logic of Blackstone’s analysis might seem to embrace the injunction as well as censorship, but Blackstone himself did not make this extension.


The constitutional protection of free speech and a free press would have only limited significance today if it were tied to Blackstone’s concept. It is unlikely, however, that the framers of the first amendment meant to confine it just to prohibiting Congress from establishing a system of licensing the press. If they had meant no more, why even mention freedom of speech? They could simply have guaranteed freedom of the press. No one was concerned that Congress might require people to get federal licenses before they would be allowed to speak. [My emphasis added.]

In other words, this brilliant 1986 passage shows why Posner goofed last month in conflating freedom of speech and freedom of the press in his slashing attack on Scalia. The 1986 passage shows that freedom of speech means far more than a ban on prior restraint, regardless of the whether the freedom of the press is so limited. Yet Posner acts as if he is utterly unaware of this brilliant 1986 passage.

Which is rather odd, given that the author of this brilliant 1986 passage is none other than Richard Posner.