Lesson 64 - Free Speech 25:

"Congress Shall Make No Law . . ." / "The Framers Meant To . . " / "The Framers Never Meant To . . ."

In First Amendment debates, people often appeal to the supposed intent of the First Amendment's Framers. "The reason the Framers said `Congress shall make no law . . ." is that they wanted to stop Congress from banning any speech. "The Framers only meant the First Amendment to protect political speech; they would never have wanted it to protect violence on television."

Constitutional scholars disagree about the extent to which the "original meaning" of the Constitution -- what it meant to those who ratified it -- should matter. But there are a few things on which almost all constitutional scholars will agree:

1. On the one hand, it's quite clear that the Framers did not see "free speech" as applying to all speech. For instance, it was well-accepted at the time that libel -- defined a good deal more broadly than it is today -- could be punished. Quite likely the same was true of blasphemy; certainly courts thought this in the early 1800s, with little objection. It's not clear whether "free speech" was meant to include calls for the overthrow of the government; there was a good deal of controversy about that. Some people even argue that only "prior restraints" were banned.
2. On the other hand, it's far from clear that the Framers interpreted "free speech" as applying only to political speech. The government didn't ban much speech in those days; we don't know whether the Framers thought "free speech" would have included obscenity or commercial advertising or entertainment, because nobody talked much about this. Quite possibly they didn't think anything about these subjects, because the matters hadn't come up -- and if they had come up, there might have been a good deal of disagreement.
3. If you really care about original meaning, you can't just quote one or two Framers -- say, Jefferson or Madison -- and say that this must be what the First Amendment means. Jefferson didn't directly participate in the drafting of the First Amendment; while his views were influential in many ways, they were certainly not shared by everyone.

Madison did draft the First Amendment, but as a legal matter his views aren't dispositive. The First Amendment became law because it was ratified by 2/3 of each house of Congress, and then by majorities in 11 of the 14 states (the original 13 plus Vermont). Madison was just one of the many hundreds of people voting on the Amendment. The relevant question has to be what the majority of the people ratifying it thought it meant, and not what he himself thought it meant.

4. Finally, as an aside, if you take original meaning seriously, what the Framers in 1791 thought is relevant only to the meaning of the First Amendment *as applied to the federal government*. Technically, the federal free speech provisions apply to the states only through the Fourteenth Amendment, which was ratified in 1868 -- for analysis of state restrictions on speech, then, we'd have to look at the understanding of the 1868 Ratifiers. This understanding, though, is as unclear and undispositive as the understanding of the 1787 Framers.

It may well be very important to take original meaning seriously; but original meaning -- and especially the views of individual Framers -- standing alone will tell us little about the right answer to virtually all free speech controversies.

authors:

Larry Lessig David Post Eugene Volokh

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1.	On the one hand, it's quite clear that the Framers did not see "free speech" as applying to all speech. For instance, it was well-accepted at the time that libel -- defined a good deal more broadly than it is today -- could be punished. Quite likely the same was true of blasphemy; certainly courts thought this in the early 1800s, with little objection. It's not clear whether "free speech" was meant to include calls for the overthrow of the government; there was a good deal of controversy about that. Some people even argue that only "prior restraints" were banned.
2.	On the other hand, it's far from clear that the Framers interpreted "free speech" as applying only to political speech. The government didn't ban much speech in those days; we don't know whether the Framers thought "free speech" would have included obscenity or commercial advertising or entertainment, because nobody talked much about this. Quite possibly they didn't think anything about these subjects, because the matters hadn't come up -- and if they had come up, there might have been a good deal of disagreement.
3.	If you really care about original meaning, you can't just quote one or two Framers -- say, Jefferson or Madison -- and say that this must be what the First Amendment means. Jefferson didn't directly participate in the drafting of the First Amendment; while his views were influential in many ways, they were certainly not shared by everyone.