Myths About America's Founders and Free Speech

Eugene Volokh

Some libertarians and conservatives have criticized modern judges for applying their own values in interpreting the First Amendment in ways that restrict freedom of speech contrary to what America's founders intended. In this selection, law professor Eugene Volokh argues that such views are based on historical myths rather than historical fact. The people who wrote the First Amendment had a much narrower conception of free speech than is accepted today, he contends. For much of American history, he argues, the First Amendment did not prevent laws providing criminal punishment against people who engaged in antigovernment or obscene speech. Volokh teaches First Amendment law at the law school of the University of California, Los Angeles. His writings include the book The First Amendment: Law, Cases, Problems, and Policy Arguments.

Primary Source Text

The liberals on the Supreme Court, and in universities, have been undermining the Framers' First Amendment handiwork. . . . And this loss of liberty stems from liberals' disdain for the text of the Constitution, and liberal judges' willingness to make law, instead of simply applying it. Soon we will lose the freedom of speech that Americans have long taken for granted.

Source

Eugene Volokh, "First Myths," www.nationalreview.com, January 5, 2004. Copyright © 2003 by National Review, Inc. Reproduced by permission.

That's the story I've been hearing from many of my conservative and libertarian correspondents. And it's just plain false.

History of the First Amendment

1. First Amendment history. To begin with, it's false because it rests on myths about the past. For most of American history, speech was less constitutionally protected than it is today. There was never a time when "no law" meant "no law" and all speech was protected.

In the late 1700s, it wasn't even clear whether the First Amendment covered criminal punishment for politically incorrect speech. Many people argued that it applied only to "prior restraints," such as injunctions or prepublication censorship rule. Laws criminalizing speech after it's published, the argument went, were perfectly constitutional—even if, for instance, the laws banned criticism of the government. Only in the 1930s was it firmly settled that the First Amendment protects speech against criminal punishment.

In the late 1700s and early 1800s, courts routinely held that some antigovernment speech—even speech that wasn't directly inciting crime—was constitutionally unprotected. In many states, until the 1810s and 1820s truth wasn't a defense to criminal libel prosecutions. Even when it became a defense, it generally applied only when the statement was made with "good motives" and for "justifiable ends," however a judge or jury chose to interpret these vague phrases. Those limitations weren't eliminated until the 1960s.

In the first half of the 1800s, courts held that blasphemy could be outlawed, and blasphemy covered not just swearing but the offensive public denial of the truth of Christianity. Until the mid-1900s, judges routinely sent people to jail for publishing newspaper articles that criticized the judges' decisions. Until the mid-1900s, obscenity laws punished not just hard-core pornography, but serious literature as well as discussion of contraceptives. . . .

Modern free-speech protections were largely the work of Justices Oliver Wendell Holmes and Louis D. Brandeis, who were generally associated with the liberal wing of the Court on most issues; of FDR's [President Franklin D. Roosevelt] liberal appointees to the Court; and of the notoriously liberal Warren Court. On today's [2004] Supreme Court, conservative Justices Anthony Kennedy and Clarence Thomas take a broad view of free speech, often broader than many of their liberal colleagues. But until the late 1980s, conservatives generally took the narrower view, not just on matters such as sex and flag desecration, but even on political and social advocacy.

Interpreting the Text

2. First Amendment text. Nor are conservatives somehow inherently more pro-free-speech because of their respect for constitutional text. The text of the First Amendment sounds categorical—"Congress shall make no law . . . abridging the freedom of speech, or of the press"—but it can't be taken as a literal protection of all speech, all the time. Is Congress forbidden from restricting the use of loudspeakers in residential D.C. neighborhoods? Do people have a constitutional right to send death threats to the president, or publicly threaten other forms of terrorism? Would it be unconstitutional for Congress to provide that federal employees can lose their statutory civil-service protection for hurling insults at each other, or at patrons?

What about copyright laws, which restrict the right of the press to publish the words that it wants to publish? The First Amendment has been applied to the states, via the Fourteenth Amendment. Are states barred from enacting laws punishing libel, or false advertising?

Now there are ways to explain why these restrictions are constitutional. For instance, restricting the use of loudspeakers regulates the noise that speech causes, and not its content. Death threats, even if they aren't accompanied by any actual violence, aren't a valuable contribution to public debate, and are potentially very harmful. But while these are sensible distinctions, it's hardly mandated by the text. We can't just say "no law means no law" and resolve the problems that way. . . .

What Judges Do

3. Making up the law. This also shows the error of faulting liberal judges for "making up the law" in this area. Unfortunately, the First Amendment is so general that judges have to create legal rules that turn the broad words into concretely applicable law. Judges can't just rely on the text. They can't just rely on the original meaning, which is highly ambiguous. (As I mentioned, the Framers didn't even agree whether the First Amendment applied to subsequent punishments, or only to prior restraints.)

One can criticize judges for just making up constitutional guarantees that aren't mentioned in the Constitution at all. But here the Constitution does say something—but something very general. If it's to be enforced at all, judges have to give it specific meaning. And that's been part of our constitutional tradition since shortly after the Framing. Conservative and liberal judges alike have done this, as to various constitutional provisions, because they have to do it.

I'm delighted that many modern conservatives take a broad view of the First Amendment. But such a view shouldn't rest on myths about American history, about the supposed clarity of the constitutional text, or about the possibility of judges simply following the law, without making law in the process.