THE FIRST AMENDMENT FREE SPEECH CLAUSE REVISITED: FIRST IN A SERIES
Could the Founding Fathers Have Imagined Social Media?
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
There are two ways for someone like me to present an essay designed to communicate and persuade dear reader regarding a legal matter so fundamental as the application of our United States Constitution and its components to our modern society. One way is as a lawyer. As a lawyer, I might want to discuss what the Founding Fathers had in mind. A great source in that regard are the Federalist Papers (see the legendary musical “Hamilton”). Or, I could discuss the subject of how and whether the Constitution and its sister the Bill of Rights applies to the states or only to the federal government. And of course, I could discuss how the First Amendment has been applied and interpreted by the judicial branch of our government (federal and state), including of course by the United States Supreme Court.
But another way to discuss the Constitution and, today, the First Amendment’s “speech” clause is to put on my “human” hat, removing and placing on the nightstand nearby my “lawyer” hat. For there are few parts of our system of government more appropriate for just plain common sense talk than the “freedom of speech.”
Let’s start with the words, taking apart the grammar so that we get to the essence of this crucial part of our “Bill of Rights.” “Congress shall make no law…abridging the freedom of speech…” For now, let’s just accept that when our Constitution says “Congress”, the Founders really intended to direct their statement to each state as well.
So now we have: “government” shall make no law abridging the freedom of speech. What is the first thing one notices about these words? Well, how about that our Founders ASSUMED that the people of the United States of America would have a freedom to speak. Why did they assume the existence of such a freedom? The answer of course is the subject of literally millions of pages of scholarship since and even before our Founding. Let’s just say that the principle author of the Bill of Rights, James Madison, as well as the other Founders, knew of a world where the individual could be jailed or tortured for speaking his mind in a public forum. Please remember what it was that the Founders were trying to “found” as a response and reaction to what they fled when they left England. Their idea was that the citizens of the new nation would govern themselves. That is a “democracy” although the word itself does not appear in the Declaration of Independence or in our Constitution. Our system of government is a “republican” form of government. By definition, a republic is a representative form of government that is ruled according to a charter, or constitution, and a democracy is a government that is ruled according to the will of the majority. Thus, given the Founder’s vision, uppermost in their minds were notions of freedom and liberty and not the restrictions they knew in England under the King.
What is the next key word that jumps out at the reader of the “speech” clause? Of course, the word “abridge” or “abridging.” What does this word mean? How about a basic defintion that was understood during the Founding era as well as today? “To diminish or reduce in scope.” The dictionary refers to a number of historic definitions: “to shorten by omission of words without sacrifice of sense”; “to shorten in duration or extent;” to reduce in scope or to “diminish.” At one time, the word abridge was used as a synonym for “deprive,” but that has long been an archaic use, including during the Founding era.
Now, let’s step back and ask ourselves what the “Bill of Rights” is. It is a collection of “don’ts.” The First Amendment starts by saying what Congress cannot do. The Second Amendment prohibits “infringement.” The Fourth Amendment says “shall not be violated.” And on and on. The rights are presumed and the government is charged with a type of “don’t.”
But the word “don’t” is not the same as the word “never.” And most assuredly, the word “abridge” is not a word that is absolute in its intent or scope. Our Founders never intended an absolute freedom to speak in all circumstances, in all places and under all conditions. Every schoolchild eventually learns that you cannot falsely yell “fire” in a crowded theater. Why? Because the harm you will cause outweighs your free speech right? How about this: No one has an unfettered right to speak falsely when the mode and manner of your false speech along with the falsity itself, in the context presented, is likely to cause imminent harm to the public at large.
Every American citizen knows that if he tells someone near the edge of a cliff to keep backing up when that person is unaware of the cliff and if that person should then fall off the cliff, his claim of “free speech” will not prevent his liability for the person’s injuries or death. Every American citizen knows that “free speech” does not permit perjury when one has taken an oath.
In short, every American, no matter where on the political spectrum (unless he or she does not believe in an ordered society), knows that the “freedom of speech” is not absolute and that the government may pass laws addressing “speech.” The laws that may be enacted are not laws “abridging” the “freedom of speech.” Rather, they are laws that define the nature of the freedom in the first instance. That is why the word “abridge” used in the First Amendment is so important. No reasonable person would say that the laws about perjury “abridge” the Freedom of Speech. No reasonable person would say that the legal consequences for falsely shouting “fire” in a crowded theater mean that the shouter’s “freedom of speech” has been abridged. As our Supreme Court has stated over and over again, “time, place and manner” matter.
Next time: having established that the speech clause of our Constitution is not absolute, what has been our historical understanding of “free speech” and what ought to be our understanding today? Dear reader may be surprised at my answer to the latter. Today’s United States is not our Founder’s United States. Accordingly, my opinion as to a modern “freedom of speech” that retains the spirit of what our Founders sought to achieve may not be to everyone’s liking. Again, next time.