“Freedom of Speech, or of the Press” as the “Right To Speak, To Write, or To Publish,” Including Symbolic Expression:

So late 1700s and early 1800s judges and commentators accepted the equivalence of symbolic and verbal expression where the freedom of speech or of the press was concerned. But can this be legitimately done, at least as to symbolic expression that wasn’t printed on printing presses, given that the First Amendment expressly speaks only of “speech” and “press”?

If we pay attention to the constitutional text, presumably because the text received legal approval as the supreme law of the land, we should focus on what the phrase actually meant as a legal concept when it was enacted, and not just on what the individual words meant in lay language. This is why those Justices who most focus on the constitutional text continually stress the original meaning of the legal phrases. Likewise, Judge Bork and Senator Hatch, whom I quoted at the start of this article, are prominent originalists, not pure textualists.

Looking to the phrase’s legal meaning rather than the word-by-word lay meaning is especially sensible when we look at “the freedom of speech, or of the press”: Read in its most restrictive sense, the provision would leave the government free to punish its critics based on their personal letters or hand-lettered signs, though exactly the same statement would be protected if it were spoken or broadly disseminated through print. It’s hard to see why the Framers would have wanted to enact a provision with this sort of limitation. And the oddness of such a result points to the likelihood that the original meaning of “the freedom of speech, or of the press” was broader than the most restrictive reading of the individual words.

So what did the phrase “the freedom of speech, or of the press” mean? Apparently it meant what James Madison originally proposed as the text of the clause: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments.”

This was roughly the language suggested by the three state ratifying conventions that proposed a combined free speech and press guarantee -- Virginia, North Carolina, and Rhode Island. “[R]ight to speak, to write, or to publish” was also the language of the influential Pennsylvania Constitution of 1776, and of the Vermont Constitution of 1777. And the three most influential early writers on American law, St. George Tucker, Chancellor James Kent, and Justice Joseph Story, all expressly characterized the First Amendment as protecting a right to speak, to write, and to publish.

I’ve seen no evidence that the omission of the right “to write” was a deliberate decision to narrow the scope of Madison’s language. Tucker’s, Kent’s, and Story’s views suggest that there was no such deliberate decision, and the Court has correctly seen these early and learned sources as highly probative of the original meaning of the Constitution. The First Congress, when editing Madison’s proposal, thus apparently viewed “Congress shall make no law . . . abridging the freedom of speech, or of the press” as a synonym for “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments.”

(The Pennsylvania Constitution of 1790 replaced the language “That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained” with “The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.” Some other constitutions of the era likewise used “print,” though most used “publish.” This replacement may lead one to ask whether “publish” -- the term used in the forbears of the First Amendment -- was seen all along as a synonym simply for printing.

But the answer to that question is apparently “no.” First, the new introductory clause, which speaks broadly of “free communication of thoughts and opinions” is on its face broad enough to go beyond oral and written verbal expression. And, second, the sources cited in the previous Part -- including the views of post-1790 Pennsylvanian judges and lawyers -- show that the constitutional principle was seen as covering symbolic expression as well as the literally spoken, written, and printed expression. This constitutional protection may have been seen as stemming from “free communication of thoughts and opinions,” or “speak, write, and print” may have been seen as extending to analogous “publish[ing]” that didn’t literally use the spoken, written, or printed word. But in any case, such protection seemed to be assumed.)

So the First Amendment was likely originally understood as applying to “publishing.” And “publish” (or sometimes “publication”) meant, to quote Samuel Johnson’s Dictionary, “to make generally and openly known; to proclaim; to divulge,” and not only to print a book. Publishing thus included publicly displaying symbolic expression, and for that matter publicly speaking something. To quote Supreme Court Justice James Wilson, who was one of the leading drafters of the Constitution, a libel is “a malicious defamation of any person, published by writing, or printing, or signs, or pictures, and tending to expose him to publick hatred, contempt, or ridicule.” Blackstone, Chancellor Kent, other commentators, and leading cases likewise used “published” to refer to conveying symbolic expression and not just verbal expression. The same was true of blasphemy law and of obscenity law: “the showing of a picture [in that case, a painting] is as much a publication, as the selling of a book.”

The “right to speak, to write, or to publish” -- which is what the First Amendment was understood as securing -- thus literally covered the right to “publish” symbolic expression by publicly displaying it. The early courts’ and commentators’ treatment of symbolic and verbal expression as equivalent therefore fits well with the provision’s original meaning.

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I hope, then, that I’ve shown one simple point: The original meaning of the First Amendment applies to symbolic expression -- as well as to handwriting -- as much as to spoken words (the narrowest meaning of “speech”) and to printed materials (the narrowest meaning of “press”). One can of course still argue that some sorts of symbolic expression, such as flag burning, should be constitutionally unprotected. But the argument that there is simply no First Amendment issue when symbolic expression is restricted, because such expression isn’t “speech” or “press,” is not supported by an originalist analysis.

(Note: To see the footnotes that support the assertions in this post and the preceding ones, look at the full current draft here, or, if that doesn’t work for you, here.)