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The Original Meaning of the Free Speech/Press Clause:

I'm planning to blog in a few days about my new law review article on Symbolic Expression and the Original Meaning of the First Amendment (forthcoming next year in the Georgetown Law Journal). But before I get into that, I wanted to make one broad note: While I think I've found solid evidence about the original meaning of the Free Speech/Press Clause as to one matter, the bigger picture original meaning of the Clause is in many ways hard to determine.

The trouble is that there were several rival views of "the freedom of speech, and of the press" in play around the time of the Framing. It's thus not clear what the original meaning of the Clause was, or even whether it had a single, determinable original meaning. For instance, there is substantial authority for all these possible meanings of the clause:

  1. The freedom consisted only of freedom from prior restraints, and didn't apply to subsequent punishments, such as criminal or civil liablity. See, e.g., Libellous Publications, 1 U.S. Op. Atty. Gen. 71, 72 (1797).

  2. The freedom of the speech and of the press requires that all subsequent punishments be imposed only after a jury verdict, in which the jury was entitled to decide whether the speech was unprotected. See, e.g., Penn. Const. art. IX, § 7 (1790).

  3. "The genuine liberty of speech and the press, is the liberty to utter and publish the truth" and not "falsehood and slander" about the government or private persons. Massachusetts Resolutions in Reply to Virginia (1799); cf. Penn. Const. art. IX, § 7 (1790) (providing that "truth may be given in evidence" in libel cases involving allegations related to "the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof").

  4. Even statutes such as the Sedition Act of 1798, which ostensibly applied only to false statements, violated the freedom of speech and of the press. Massachusetts Resolutions in Reply to Virginia (1799) (providing that "truth may be given in evidence" in libel cases involving allegations related to "the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof").

As I said, there are some things on which most people of the era would have agreed on, for instance that false, defamatory statements about individuals were constitutionally unprotected, at least against state libel lawsuits and likely state libel prosecutions (even though many state constitutions of the era expressly protected the freedom of the press). But beyond that my sense is that was a great deal of disagreement, even on the fundamental issues I noted above. This need not be true as to all constitutional provisions, but it appears to be true as to the Free Speech/Press Clause.

It seems that the Framers — like many politicians since then (and likely before then) — were often happy to avoid difficult issues by enacting broad language that was generally agreed to at a high level of generality, but the specific meaning of which was contested. This is unfortunately a serious problem for original meaning analysis in those fields, though as I said I think there is some original meaning that can be gleaned as to particular questions.

nicestrategy (mail):
So... would an original meaning approach to libel and slander put the McCain campaign in jeopardy? Or all modern politicians? Did the overreach of the Sedition Act enable the negative campaigning of 1800, setting an uncivil precedent for American politics generally?
9.15.2008 1:50pm
John (mail):
I gather you weren't able to find any stuff on nude dancing? Protected, not protected? Jefferson vs. Adams on this perhaps?
9.15.2008 1:53pm
Eugene Volokh (www):
John: I'm pretty certain that laws against public nudity -- including nudity before a large group of consenting adults -- would have be seen as constitutional when applied to nude dancing. On top of that, nude dancing may well have fit in the ill-defined "obscene libel" exception to free speech protection, though that is not heavily attested in Framing-era America until the 1810s or so. (Note that here "libel" in this context basically just meant public communication and not just false or defamatory communication.) But I can't say that I have a lot of authority with regard to nude dancing as such, since the issue was not much discussed at the time.
9.15.2008 2:02pm
J. Aldridge:

Even statutes such as the Sedition Act of 1798, which ostensibly applied only to false statements, violated the freedom of speech and of the press.

John Marshall approved of the Sedition Act as constitutional. It was actually a very popular act with the states and people (VA and KY excepted).
9.15.2008 2:06pm
Tony Tutins (mail):
Prof. V.: For your next article perhaps you would like to tackle the complementary freedoms: Freedom to Read and Freedom to Hear, which have been brought out by the library censorship discussion.
9.15.2008 2:19pm
Tennessean (mail):
Your last paragraph seems to me to be a very tempting opening to the sort of constitutional interpretation favoured by, e.g., Ronald Dworkin. Why not interpret the 'broad language that was generally agreed to at a high level of generality' as intended to be the enshrinement of a moral principle rather than a precise rule? In that case, where is the problem for original meaning analysis? The original meaning is the moral principle, nothing more, but that is sufficient.
9.15.2008 2:20pm
Ohismith (mail):
[Off-topic comment deleted; it was posted here, I think, because the comments on the library book removal thread were broken -- I've now fixed them.]
9.15.2008 2:44pm
frankcross (mail):
I don't see any reason why this is a problem for original meaning analysis per se. It is a problem for those who use original meaning as if it necessarily gives definitive answers to today's cases. But that is not intrinsic in original meaning analysis. It is perfectly explicable that the original meaning was to confer pragmatic discretion in the Court, to adapt to changed circumstances and values.
9.15.2008 3:04pm
Arkady:

It seems that the Framers — like many politicians since then (and likely before then) — were often happy to avoid difficult issues by enacting broad language that was generally agreed to at a high level of generality, but the specific meaning of which was contested.


And pretty damn smart they were to do so. They certainly didn't wish to dive into this thicket: :"The original meaning is the moral principle" -- any original meaning analysis that proceeds with reference to an "immanent moral principle" might well end up in dormitive virtue land.
9.15.2008 3:15pm
Dilan Esper (mail) (www):
This is an excellent post and a nice reminder of one reason why originalism is somewhat overrated as an interpretative philosophy-- the real original understanding is often to kick the can down the road.

I would note that Robert Bork's justly famous law review article from 1971, "Neutral Principles and Some First Amendment Problems", endorses a quite specific originalist claim about the First Amendment. Personally, that article is one of the reasons I am glad Bork never made it to the Supreme Court, but I note it nonetheless as an forcefully-argued piece on the issue that some Volokh readers might be interested.
9.15.2008 3:38pm