![]() Speech, unlike the freedom of the press, emerged from the legislative privilege 3 But another prominent view is that the freedom of Speech and the freedom of the press were equivalent concepts, togetherĬomprising what we would now call a freedom of expression. What the framers meant by freedom of speech will ever emerge.” 2 Conventional wisdom holds that the freedom of “One can keep going round and round on the original meaning of theįirst Amendment,” Rodney Smolla writes, “but no clear, consistent vision of Politicians nor judges may “attempt to revise that judgment simply on the basisĪfter a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Outweigh the costs,” the Court recently declared, concluding that neither “The First Amendment itself reflects a judgmentīy the American people that the benefits of its restrictions on the Government Ĭonstitutional mythologist, the Supreme Court often says that the FirstĪmendment answers this challenge. ![]() AnĮnduring challenge for any legal system is balancing these concerns. Yet communication is essential to human flourishing, and history has shown time and again that governments are prone to censorial abuse. Witness stand, or conspiring to commit crimes, speech can be tremendously harmful. Whether someone is falsely yelling “fire” in a crowded theater, lying on the Wake Forest University School of Law faculty workshop. The University of San Diego Originalism Works-in-Progress Conference, and the University Chicago Constitutional Law Colloquium, the Stanford Law Schoolįaculty workshop, the University of Richmond School of Law faculty workshop, Institute for Constitutional History Junior Scholars Seminar, the Loyola Scholars Colloquium, the Georgetown Constitutional Law Colloquium, the Solum, Andrew Verstein, Kevin Walsh, the editors of the Yale Law Journal, and participants in the Federalist Society Junior Meyler, Zach Price, Jack Rakove, Richard Re, Fred Schauer, Sid Shapiro, Larry Kramer, Corinna Lain, Kurt Lash, Maeva Marcus, Michael McConnell, Bernie The author thanks Randy Barnett, Will Baude, NathanĬhapman, Saul Cornell, Jonathan Gienapp, Masha Hansford, Pam Karlan, Larry Merely discovering-not crafting-the First Amendment’s contours and boundaries. However, history undercuts the Supreme Court’s recent insistence that theĪxioms of modern doctrine inhere in the Speech Clause itself, with judges Implications for a host of First Amendment controversies. Incorporate this history in diverse ways, with potentially dramatic Various interpretive theories-including ones described as “originalist”-might Their own constitutional language-silently shifted between these complementaryįramework significantly reorients our understanding of the history of speechĪnd press freedoms by recognizing the multifaceted meanings of these concepts,Īnd it raises challenging questions about how we might use that history today. Much of our modern confusion stems from how the Founders-immersed in In this respect, speech and press freedoms carried distinct Well-intentioned statements of one’s views were immune from governmental Licensing, while the freedom of speaking, writing, and publishing ensured that Press, for instance, often referred specifically to the rule against press But expressiveįreedom connoted more determinate legal protections as well. Implications that depended on calculations of the public good. In this respect, speechĪnd press freedoms were equivalent concepts with highly contestable Rights that were expansive in scope but weak in their legal effect, allowingįor restrictions of expression to promote the public good. Speech and press freedoms referred, in part, to natural Understanding of natural rights that no longer survives in AmericanĬonstitutional thought. Particular, their approach to expressive freedom was grounded in a multifaceted Privilege of speech and debate, thus providing more robust protection forĮra elites shared certain understandings of speech and press freedoms, asĬoncepts, even when they divided over how to apply those concepts. The freedom of speech, unlike press freedom, emerged from the legislative Most scholars view these freedoms asĮquivalent, together enshrining a freedom of expression. The relationship between speechĪnd press freedoms is contested, too. Still more claim that speech and pressįreedoms lacked any commonly accepted meaning. ![]() Others focus on the libertarian ideas that helped shape Pointing to Founding Era sedition prosecutions, emphasize the limited scope of After a century of academic debate, however, the meanings of speechĪnd press freedoms at the Founding remain remarkably hazy. ![]() The Supreme Court often claims that the FirstĪmendment reflects an original judgment about the proper scope of expressiveįreedom. ![]()
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