December 1, 2010 | National Review Online

Does the First Amendment Mean What It Says Regarding Speech?

As I noted earlier, yesterday's column was about WikiLeaks and dealt with whether there is a public “right to know.” In part, that poses the question whether the First Amendment permits the government to limit what newspapers may publish. I made the following assertion:

From its inception, the First Amendment has never been understood to mean what it says – just ask the Times, a notorious champion of speech-stifling campaign finance “reform” as well as “hate speech” restrictions. Where speech is concerned, civil libertarians and devotees of the “living Constitution” see the First Amendment as an “aspiration, to be given meaning over time,” as the University of Chicago's Geoffrey Stone has put it.

I should perhaps have been clearer that I am not a devotee of the “living Constitution.” If you read my stuff, you already know that. Moreover, I wrote a pretty spirited dissent from Professor Stone's engaging book, Perilous Times: Free Speech in Wartime, for the March 2005 edition ofCommentary (my essay was called “Free Speech for Terrorists?”). Like Justice Scalia, I like my Constitution dead, thank you very much, and think we should use its amendment process if we want to liven it up.

Nevertheless, I've always taken the language of the First Amendment's free speech clause – “Congress shall make no law … abridging the freedom of speech, or of the press” – to be more sweeping than the freedom it was understood to convey. That's why I said, probably too off-handedly, that “the First Amendment has never been understood to mean what it says.” I don't agree with Prof. Stone's argument that it was an aspirational provision meant to evolve with the times. But I also don't think limitations on speech that were well known in the late 18th Century (e.g., obscenity, profanity, libel, “fighting words”) were well conveyed by the free speech clause.

As usual, Ed Whelan to the rescue. Ed points out to me that the clause does not forbid Congress from abridging freedom of speech generally – as if there were no conceivable restrictions. The framers took pains to insert the definite article the – barring Congress from “abridging the freedom of speech.” It seems like a small difference, but it is not. As Ed puts it, “the freedom of speech” was an “understood set of rights” at the time of the First Amendment's adoption. In other words, the text of the First Amendment does not prohibit all restrictions on speech. It merely prohibits abridgment of “the freedom of speech.” The question with respect to any speech restriction, therefore, is whether what it restricts is part of “the freedom of speech.”

Ed's point is consistent with Judge Bork's argument in Slouching Towards Gomorrah. Excerpting from the Supreme Court's 1942 decision in Chaplinsky v. New Hampshire, Judge Bork points out that

[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

As always, I am indebted to Ed and to Judge Bork, not only for the lesson in originalism but for the happy reminder that, as late as 1942, the Supreme Court assumed the existence of both truth and a social interest in order and morality!

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