Natural Rights and the First Amendment
abstract. The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.
This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.
This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.
author. Assistant Professor, University of Richmond School of Law. The author thanks Randy Barnett, Will Baude, Nathan Chapman, Saul Cornell, Jonathan Gienapp, Masha Hansford, Pam Karlan, Larry Kramer, Corinna Lain, Kurt Lash, Maeva Marcus, Michael McConnell, Bernie Meyler, Zach Price, Jack Rakove, Richard Re, Fred Schauer, Sid Shapiro, Larry Solum, Andrew Verstein, Kevin Walsh, the editors of the Yale Law Journal, and participants in the Federalist Society Junior Scholars Colloquium, the Georgetown Constitutional Law Colloquium, the Institute for Constitutional History Junior Scholars Seminar, the Loyola University Chicago Constitutional Law Colloquium, the Stanford Law School faculty workshop, the University of Richmond School of Law faculty workshop, the University of San Diego Originalism Works-in-Progress Conference, and the Wake Forest University School of Law faculty workshop.
Governments need to restrict expression. Whether someone is falsely yelling “fire” in a crowded theater, lying on the witness stand, or conspiring to commit crimes, speech can be tremendously harmful. Yet communication is essential to human flourishing, and history has shown time and again that governments are prone to censorial abuse. An enduring challenge for any legal system is balancing these concerns.
In its role as constitutional mythologist, the Supreme Court often says that the First Amendment answers this challenge. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs,” the Court recently declared, concluding that neither politicians nor judges may “attempt to revise that judgment simply on the basis that some speech is not worth it.”1
After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. “One can keep going round and round on the original meaning of the First Amendment,” Rodney Smolla writes, “but no clear, consistent vision of what the framers meant by freedom of speech will ever emerge.”2 Conventional wisdom holds that the freedom of speech and the freedom of the press were equivalent concepts, together comprising what we would now call a freedom of expression.3 But another prominent view is that the freedom of speech, unlike the freedom of the press, emerged from the legislative privilege of speech and debate,4 thus providing robust protection for political speech.5 Still more scholars conclude that “freedom of speech, unlike freedom of the press, had little history as an independent concept when the first amendment was framed.”6 And while some scholars espouse “little doubt that the First Amendment was meant . . . to forbid punishment for seditious libel,”7 debates among the Founders on that topic would seem to belie any broadly shared original understanding of speech and press freedoms.8 No wonder so many commentators have given up the search for original meaning, with some concluding that the First Amendment was simply “an aspiration, to be given meaning over time.”9
But perhaps this indeterminacy stems from our own interpretive approach. “[T]he first key to understanding the American Founding,” historian Jonathan Gienapp cautions, “is appreciating that it is a foreign world,” filled with many concepts that bear only a deceptive resemblance to modern ideas.10Perhaps, then, we have been looking for original meaning in the wrong way, instinctively trying to fit the historical evidence to our own conception of constitutional rights.
Modern lawyers tend to view constitutional phrases like “the freedom of speech” as terms of art, sparking searches for those terms in eighteenth-century legal sources. In the context of speech freedom, that effort produces sparse and inconsistent results. Americans, it turns out, rarely ever used the term “freedom of speech.” Meanwhile, the Founders frequently mentioned press freedom, but they did so in seemingly conflicting ways. The liberty of the press, William Blackstone famously insisted, “consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”11 Founding Era commentaries about press freedom, however, routinely ventured beyond the topic of press licensing.12
Proposing a paradigm shift, this Article argues that Founding Era elites shared certain understandings of speech and press freedoms at a more abstract, conceptual level even though they disagreed about how to apply those concepts to particular constitutional controversies. The contested implications of speech and press freedoms at the Founding, in other words, have obscured their more widely shared meanings. To comprehend these meanings, however, we must step back from the nitty-gritty details of legal doctrine and grapple with the conceptual foundations of the First Amendment, starting with the largely forgotten language of Founding Era rights discourse.13
For American elites, rights were divided between natural rights, which were liberties that people could exercise without governmental intervention, and positive rights, which were legal privileges or immunities defined in terms of governmental action or inaction, like the rights of due process, habeas corpus, and confrontation.14 Consequently, distinguishing natural rights from positive rights was simple. “A natural right is an animal right,” Thomas Paine succinctly explained, “and the power to act it, is supposed, either fully or in part, to be mechanically contained within ourselves as individuals.”15 Natural rights, in other words, were those that did not depend on the existence of a government. Speaking, writing, and publishing were thus readily identifiable as natural rights.
Though easy to identify, natural rights at the Founding scarcely resembled our modern notion of rights as determinate legal constraints on governmental authority. Rather, Americans typically viewed natural rights as aspects of natural liberty that governments should help protect against private interference (through tort law, property law, and so forth) and that governments themselves could restrain only to promote the public good and only so long as the people or their representatives consented.16 And assessing the public good—generally understood as the welfare of the entire society—was almost entirely a legislative task, leaving very little room for judicial involvement.17 Natural rights thus powerfully shaped the way that the Founders thought about the purposes and structure of government, but they were not legal “trumps” in the way that we often talk about rights today.
By the late eighteenth century, however, expressive freedom also connoted a variety of more determinate legal protections. The liberty of the press, for instance, often referred specifically to the rule against press licensing; by prohibiting prior restraints on the press, this rule put juries in charge of administering governmental restrictions of expression through criminal trials. Meanwhile, the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from regulation. In this limited way, expressive freedom entailed legal “trumps.” Much of our modern confusion about the history of speech and press freedoms stems from the way that the Founders—immersed in their own constitutional language—silently shifted between these two dimensions of expressive freedom.
Indeed, Founding Era rights discourse featured a symbiotic relationship between natural rights and legal rules.18 In part, the common law indicated the scope of natural rights both because of a presumed harmony between the common law and natural law and because common-law rules were presumptively based on popular consent and consistent with the public good. At the same time, the Founders sometimes used natural law—the law of reason—to help shape their understandings of positive law. To recognize a natural right, in other words, implied recognition of its customary legal protections, and vice versa.19
The Founders, however, often disagreed about the precise relationship between natural rights and the common law, leading to a confusing array of statements about expressive freedom. In general, Federalists based their views about natural rights on legal authority, not practical experience or abstract reasoning, making judicial accounts of the common law decisive. But an opposing interpretive tradition championed “popular” understandings of constitutional and legal commands.20 Advocates of this view, Saul Cornell explains, were “deeply suspicious of ceding so much authority to lawyers and judges,” sometimes even going so far as to compare “the chicanery of lawyers with the practices of ‘Romish priests in matters of religion.’”21 For these “popular” interpreters, who were often themselves erudite elites, practical experience and common sense were paramount.
Because of these methodological disagreements, Americans who shared an understanding of speech and press freedoms as natural rights often profoundly disagreed about the legal implications of the First Amendment. Federalists in the late 1790s, for instance, typically invoked the English common law to defend the constitutionality of sedition prosecutions, while many Republicans appealed to practical experience and common sense to reach the opposite conclusion. Yet this virulent disagreement among contending elites began with a shared recognition of expressive freedom as a natural right. This Article’s reframing thus illustrates that identifying methodological differences among the Founders can help clarify, and not merely complicate,22 the historical meanings of constitutional concepts.
Debates about expressive freedom also were wide ranging because the Founders often vehemently disagreed about which regulations of speech promoted the public good. Many viewed narrowly drawn sedition laws as enhancing public debate by combating efforts to mislead the public.23 Others thought that sedition laws created more harm than good by chilling too much useful speech.24 But properly understood, this conflict did not reflect profound divisions about the concept of expressive freedom. Rather, the Founders disagreed about how to apply that concept to sedition laws.25
To set the stage for this historical argument, Part I discusses the Article’s historical contribution and previews its potential modern implications. It begins by offering a brief overview of related scholarship. This overview sets in relief the Article’s focus on the interplay between natural rights and the common law. The Part then explores the ways that this revisionist account could influence modern understandings of the First Amendment. In particular, it emphasizes that the Speech and Press Clauses were originally rooted in a broader Founding Era discourse about natural rights—not, as modern scholarship generally posits, a particular theory about why expression warrants constitutional protection.
Part II then turns to the history, drawing out three different meanings of speech and press freedoms at the Founding. First, speech and press freedoms were natural rights that were regulable in promotion of the public good, meaning the good of the society as a whole.26 Second, the Founders widely thought that the freedom to make well-intentioned statements of one’s views belonged to a subset of natural rights, known as “unalienable” natural rights, that could not be restricted in promotion of the public good and thus fell outside legislative authority to curtail.27 Third, Americans recognized a variety of common-law rules that offered more determinate legal protection for expressive freedom.28 A concluding Section then explores the contested interrelationship between these concepts.29
Part II, it bears emphasis, aims to recover the principles that Founding Era elites had in mind when designing and applying the Speech and Press Clauses, but it is not directly concerned with the original meanings of those provisions. Postponing that discussion until Part III is deliberate. Indeed, this Article defends the view that we cannot understand the meaning of the First Amendment until we first understand the forgotten language in which it was written.
With this conceptual framework in mind, Part III offers a novel interpretation of the original meanings of the Speech and Press Clauses. The argument proceeds by connecting the text and early interpretations of the First Amendment to the framework developed in Part II. Throughout the ratification debates and into the First Congress, supporters of a bill of rights pushed for constitutional recognition of existing concepts. Therefore, to the extent that Founding Era elites originally understood the First Amendment as imposing determinate limits on congressional power, these limits were delineated by accepted common-law rules and by the inalienable natural right to make well-intentioned statements of one’s thoughts. Beyond these principles, however, the First Amendment left unresolved whether certain restrictions of expression promoted the public good. In laying out this argument, this Part also rebuts competing scholarly accounts of the original meanings of the Speech and Press Clauses and emphasizes the ways in which these Clauses had distinct meanings.
The Article then concludes by returning to the modern implications of First Amendment history. A point of emphasis is the historical distance that separates us from our constitutional past. If the Supreme Court wanted to apply only those legal rules that the Founders recognized (or likely would have recognized), a huge swath of modern case law would have to go. There is no evidence, for instance, that the Founders denied legislative authority to regulate expressive conduct in promotion of the public good—a principle that runs contrary to countless modern decisions.
But beyond case-specific implications is a more fundamental point: the early history of speech and press freedoms undercuts the mythological view that foundational principles of modern doctrine inhere in the original Speech Clause. The Justices, for instance, have repeatedly asserted that the First Amendment itself strictly disfavors content-based regulations of speech.30 And when the Court recently derided the government’s suggestion that some speech might be deemed “low value” and thus subject to less rigorous scrutiny, it acted as if the Speech Clause contains a full set of doctrinal rules.31 Lowering judicial scrutiny for less valuable forms of speech, the Court explained, would “revise th[e] judgment” that “[t]he First Amendment itself reflects.”32 Doubling down on this idea, the Court later insisted that “[t]he whole point of the First Amendment” was to prevent speech restrictions based on “a generalized conception of the public good.”33
Simply put, however, the First Amendment did not enshrine a judgment that the costs of restricting expression outweigh the benefits. At most, it recognized only a few established rules, leaving broad latitude for the people and their representatives to determine which regulations of expression would promote the public good. Whether modern doctrine serves those original principles is then a judgment that we must make. The original meanings of the Speech and Press Clauses do not provide the answer.
I. stakes and implications
Before turning to the eighteenth century, it is worth making some preliminary remarks about this Article’s contribution to historical scholarship and its implications for modern doctrine.
A. Scholarly Contribution
This Article charts a new historical path by concentrating on the conceptual meanings, and not merely the legal dimensions, of speech and press freedoms. For much of the twentieth century, scholarship about expressive freedom at the Founding overwhelmingly focused on the compatibility of sedition prosecutions with the First Amendment.34 While historically enlightening, much of this scholarship offered little clarity about the First Amendment’s original meaning beyond the topic of sedition. Some historians and legal academics have pursued that effort more directly, but the literature falls far short of consensus. Scholars typically treat speech and press freedoms as common-law rules, leading many to emphasize the ban on prior restraints.35 Others, relying both on Federalist claims during the ratification debates and on Republican arguments against the Sedition Act, insist that the Speech and Press Clauses categorically withdrew all federal authority over expression.36 Still more assert that the Speech Clause was linguistically and substantively derived from the legislative privilege of speech and debate.37 Finally, many have simply thrown up their hands and declared the enterprise to be hopeless or misguided.38
A few scholars have identified a connection between the First Amendment and natural rights, but none has accounted for the multifaceted way that the Founders referred to speech and press freedoms. Philip Hamburger, for instance, classifies both freedoms as natural rights, emphasizing governmental authority to prevent encroachment on the rights of others.39 Yet Hamburger never grapples with the complex relationship between natural rights and customary legal rules—an issue that profoundly shaped Founding Era disputes about expressive freedom.40 Meanwhile, others who describe speech and press freedoms as natural rights typically view the First Amendment as a categorical ban on any federal restrictions of expression.41
This Article, by contrast, presents an understanding of Founding Era expressive freedom grounded on the interrelationship between common-law traditions and natural-rights principles. As a general matter, natural rights did not impose fixed limitations on governmental authority. Rather, Founding Era constitutionalism allowed for restrictions of natural liberty to promote the public good—generally defined as the good of the society as a whole.42 Recognition of natural rights, in other words, simply set the terms of political debate, not the outcomes. In this sense, speech and press freedoms were expansive in scope—applying to all forms of expression—but weak in their legal effect. And no evidence indicates that the First Amendment empowered judges to determine whether particular restrictions of speech promoted the general welfare.43 (Although perhaps strange to modern readers, this interpretation of the First Amendment—generally permitting the government to restrict speech in the public interest—survived into the early twentieth century.44)
Nonetheless, the Founders also accepted that speech and press freedoms denied the government narrower slices of regulatory power. Everyone agreed, for instance, that the liberty of the press encompassed at least the common-law rule against press licensing. Americans also prized the right to a general verdict in sedition trials—enabling juries to decide questions of law and fact—and the right to present truth as a defense. Based largely on natural-rights principles, the Founders further rejected governmental authority to punish well-intentioned statements of one’s thoughts absent direct injury to others.45 But this principle did not extend to speech designed to mislead or harm others, nor is there evidence that it offered protection for what we now call “expressive conduct.”46 In these limited ways, speech and press freedoms were narrow in scope but strong in their legal implications. And the legal dimensions of expressive freedom reveal how the Founders sometimes treated speech and press freedoms as distinct, with press freedom encompassing only the legal rights of printing-press operators.
The claims made in the previous two paragraphs—developed further in Part II—simply describe a historical system of thought that Founding Era elites widely embraced. This Article does not attempt the impossible task of uncovering how every American actually thought about expressive freedom. Consequently, the discussion of “original meaning” in Part III aims to recover how Founding Era elites understood (where we have direct evidence), or would likely have understood (where we lack direct evidence), the Speech and Press Clauses of the First Amendment.47 But this Article has little to say about the views of Americans who were unfamiliar with the underlying principles of social-contract theory.48
The interpretive relevance of my historical claims is therefore contingent. Scholars using some other methodology might propose an alternative understanding of the First Amendment as the correct meaning at the time of the Founding.49 This Article cannot contest that claim because, as historical scholarship, it does not take any position on what made a constitutional interpretation “correct.”50 Rather, it argues that Founding Era elites widely embraced a particular system of thought and that this system of thought undergirded how those elites wrote and originally understood the First Amendment.
B. Implications for Modern Doctrine
Shifting from the perspective of a historian to that of a modern constitutional interpreter, however, it might be reasonable to assume that elite views suffice to show what now counts as an “original meaning.” After all, the historical evidence that scholars and judges routinely use in modern constitutional interpretation consistently reflects the perspectives of elites.51
So what relevance does this history have today? Most judges and constitutional scholars think that Founding Era evidence does and should matter when interpreting the Constitution.52 On this assumption, accounting for the original meanings of speech and press freedoms would have profound consequences for First Amendment theory and doctrine.
In terms of its consequences for theory, history undermines the notion that the First Amendment itself embraces a particular rationale for protecting expression. Such theories dominate modern debates.53 The meaning and scope of the First Amendment, scholars usually posit, depend on why the Constitution singles out speech and press freedoms.54 Some theories emphasize republican government,55 others the marketplace of ideas,56 and still more the autonomy of individuals.57
Viewed historically, however, the First Amendment did not enshrine a particular rationale for expressive freedom. To be sure, the men who drafted and ratified the First Amendment had various reasons for why they valued expression.58 And when it came time to apply the Speech and Press Clauses, various theories of expressive freedom could inform an assessment of the public good. But these theories were not themselves baked into the First Amendment.
Recovering the history of expressive freedom also has potentially dramatic consequences for legal doctrine. Worth highlighting, yet again, is the “utter differentness and discontinuity of the past.”59 Indeed, modern speech doctrine, which emerged in the twentieth century, bears almost no resemblance to eighteenth-century judicial decisions.60 And the Founders certainly did not envision courts crafting legal rules to prohibit speech-suppressing legislation that judges viewed as contrary to the public good.61 In that sense, modern doctrine is fundamentally inconsistent with Founding Era law.
For originalists with a narrow conception of the judicial role,62 this variance either calls for a radical dismantling of speech doctrine, or it requires a concession that precedent has displaced original meaning.63 A huge swath of modern case law, after all, falls outside of the First Amendment’s original legal ambit, including its ban on prior restraints and its protection for well-intentioned statements of one’s thoughts. If an originalist wanted First Amendment doctrine to track Founding Era judicial reasoning, the Supreme Court’s decisions in Texas v. Johnson,64 Boy Scouts of America v. Dale,65 Citizens United v. FEC,66 and Snyder v. Phelps,67 among many, many others, would likely have to go.68
But other originalists argue that judges are empowered, or even duty-bound, to give concrete meaning to underdeterminate constitutional provisions.69 If one accepts this view, then modern law might still comport with original meaning. For instance, a natural-rights reading of the First Amendment would require the government to act for reasons that promote the public good, and modern doctrine can perhaps be understood, or justified, as prophylactic rules that help ferret out illicit motives.70 To be sure, these judicial efforts bear little resemblance to anything that the Founders themselves would have endorsed. But they can still be seen as a way of implementing the original concepts of speech and press freedoms using modern doctrinal tools.71 And it is to those historical concepts that we now turn.
II. natural rights at the founding
When James Madison proposed constitutional amendments in 1789, he noted that his draft included “natural rights, retained—as Speech, Con[science].”72Indeed, eighteenth-century writers often identified speech as “a natural Right, which must have been reserved, when Men gave up their natural Rights for the Benefit of Society.”73 But what were natural rights?
Section II.A explores the general eighteenth-century meaning of natural rights. In short, natural rights shaped how the Founders thought about the structure and purposes of government—ensuring that the government could restrain natural liberty only to promote the public good and only with the consent of the people. But these “rights” (including the natural right of speaking, writing, and publishing) generally were not determinate legal privileges or immunities.
Since natural rights were subject to governmental regulation, we might wonder why the Founders bothered amending the Constitution to include any of them.74 Indeed, some Federalists made exactly this argument when opposing an enumeration of rights. The purpose of declaring rights, John Jay explained, was to establish that “certain enumerated rights belonged to the people, and were not comprehended in the royal prerogative.”75 Under a republican government, however, all legislative power was exercised by elected representatives, thus obviating any need to enumerate naturalrights.76 Though puzzling today, Jay’s argument had considerable merit. Moreover, even among those who advocated for enumerating rights, many thought that declarations were hortatory, serving as a reminder, both to the people and to their government, of the reasons for instituting government and of the terms of the social contract and constitution.77
Nonetheless, as Sections II.B and II.C demonstrate, the Founders often referred to certain rights, including speech and press freedoms, in a more legalistic way. Enumerated constitutional rights were “exceptions” to legislative authority, James Madison explained to Caleb Wallace in 1785.78 This would have been quite a strange comment if Madison were alluding to liberty that could be regulated to promote the public good. Others called for a bill of rights so that a “Check will be placed on the Exercise of . . . the powers granted.”79 Indeed, Thomas Jefferson claimed that enumerating rights would put a “legal check . . . into the hands of the judiciary,”80 even though American elites broadly agreed that judges had no business resolving cases based on judicial assessments of the general welfare.81
In fact, speech and press freedoms had assumed greater determinacy in two respects. First, as explained in Section II.B, the Founders recognized an inalienable natural right to express one’s thoughts, sometimes described as the “freedom of opinion.” Second, as shown in Section II.C, American elites widely embraced an assortment of common-law rules, including a ban on press licensing, that offered more determinate legal protections for expressive freedom.82 In this way, speech and press freedoms were legally distinct, with the latter referring only to the customary legal rules that protected printing-press operators. Finally, Section II.D concludes with a discussion of the contested relationship between natural rights, inalienable natural rights, and the common law.
A. Natural Rights and Expressive Freedom
The intellectual foundation of Founding Era constitutionalism was social-contract theory.83 Essentially, the theory was a thought experiment designed to reveal the proper scope and distribution of political authority. It began by positing a world without government, commonly known as a “state of nature,” in which individuals had only “natural rights.” The theory then explored why people in this condition would choose to organize politically.84
Natural rights were any capacities that humans could rightly exercise on their own, without a government. (Positive rights, by contrast, were defined in terms of governmental action or inaction.) Consequently, natural rights encompassed nearly all human activities, sometimes summarized as a right to liberty or a “right to act.”85More typically, however, natural-rights rhetoric developed around particular controversies. The natural rights to conscience and self-defense were part of the eighteenth-century lexicon, for instance, while other aspects of natural liberty, like eating and sleeping, were largely unmentioned.86
Without recognizing this broader natural-rights discourse, scholars often view the freedom of speech as a term of art that originated with the legislative privilege of speech and debate,87 or they conclude that “freedom of speech . . . had little history as an independent concept when the first amendment was framed.”88 For the Founders, however, mentioning a “freedom to do something” naturally alluded to natural rights, without any need for further clarification or consistent terminology.89
Not surprisingly, then, the Founders invoked the natural right of expressive freedom in all sorts of ways. References to the freedom of speaking, writing, and publishing seem to have been the most common,90 probably because that phrasing appeared in the Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777.91 In the committee that revised Madison’s proposed Bill of Rights, for instance, one draft mentioned “certain natural rights which [we] retained,” including the right “of [s]peaking, writing and publishing . . . with decency and freedom.”92But in the course of discussing natural rights, contemporaries also mentioned the “right to speak,”93 “[t]he right of publication,”94“the natural right of free utterance,”95 the “liberty of discussion,”96 “the liberty of the tongue,”97 the “exercise of . . . communication,”98 and so forth.
Eighteenth-century commentators sometimes referred to “the liberty of the press” as a natural right, too.99 “Printing,” after all, was “a more extensive and improved Kind of Speech.”100 Some Founders distinguished the freedom of publishing, as a natural right, from the freedom of the press, as a common-law rule against press licensing.101(In eighteenth-century English, “the press” was a reference to printing; the term did not refer to journalists until the nineteenth century.102) But the use of this terminology was fluid, and Founding Era discussions of press freedom often alluded to natural-rights concepts.103 Some writers even equated “the Liberty of the Press” with “the Liberty of publishing our Thoughts in any Manner, whether by Speaking, Writing or Printing,” thus treating speech and press freedoms as synonymous.104
Recognizing that expressive freedom was a natural right, however, is just the beginning. We also need to consider what that classification meant in terms of limits on governmental power. And that issue turned on two inquires: first, the scope of pre-political natural liberty, and, second, the extent to which individuals surrendered control of that liberty upon entering into a political society. As we will see, the Founders defined pre-political natural rights in two distinct ways, but this difference ended up being of little practical significance because of a comparable divergence over how much natural liberty individuals surrendered when leaving the state of nature.
In terms of the scope of natural rights, the Founders universally accepted that pre-political natural liberty was circumscribed by natural law.105At a minimum, natural law required that individuals not interfere with the natural rights of others.106 There was no natural right to assault others, for instance, because assault interfered with the natural right of personal security. Viewed in this way, natural rights could be roughly understood as human liberty to act unless those acts directly harmed others.
But some Americans, informed by David Hume’s view that humans are inherently sociable,107 defined natural law in terms of social obligations, too. “Man, as a being, sociable by the laws of his nature,” Vermont jurist Nathaniel Chipman observed, “has no right to pursue his own interest, or happiness, to the exclusion of that of his fellow men.”108 James Wilson echoed this theme in his law lectures, explaining that natural law requires individuals to avoid injury, selfishness, and injustice.109 Thus, Wilson explained, every person can act “for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours. This right is natural liberty.”110
At the next stage of social-contract theory, the Founders imagined that individuals—recognizing the deficiencies of a state of nature—would unanimously agree to form apolitical society (or body politic) under a social contract (or social compact).111 “The body-politic is formed by a voluntary association of individuals,” the Massachusetts Constitution of 1780 characteristically declared, and “is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.”112 Creation of a body politic, the Founders imagined, then set the stage for another pact, the constitution, in which the people vested power in a government by majority consent.113
Elites widely agreed about the essence of the social contract—namely, that the political society should protect natural liberty and should limit freedom only to promote the public good.114 And the Founders generally understood this concept of the public good in an aggregate, collective sense, embracing the “safety and happiness of society,” as Madison put it.115 (A slew of interchangeable terms referred to the same idea, including “collective interest,” “common good,” “general utility,” “general welfare,” “public interest,” and so forth.116) In the end, this framework prioritized the interests of the whole society over narrower private interests. The common good, the Founders repeatedly implored, often required individual sacrifices.117 At the same time, however, “respect for the public interest meant that lawmakers had to consider everyone’s interests, and not merely those of particular individuals or factions.”118
But while largely in agreement on substance, the Founders spoke in a confusing assortment of ways about the retention of natural rights. The most common phrasing was, as William Blackstone put it, that “every man, when he enters into society, gives up a part of his natural liberty.”119 Meanwhile, others talked about it being “necessary to give up [natural] liberty” entirely,120 or at least necessary to “surrender the power of controuling . . . natural alienable rights.”121 Still more insisted that in forming a republic, “the people surrender nothing.”122
This dizzying array of statements—that individuals retained some, all, or none of their natural liberty—has created an extraordinary amount of confusion among scholars.123 And it would seem to indicate substantial differences of opinion among the Founders about the scope of their natural rights. In truth, however, the disagreement was semantic, not substantive, because competing views about the terms of the social contract mirrored the competing views about the scope of pre-political natural rights.
For those who viewed natural rights as inherently circumscribed by a concern for the general welfare, individuals could retain all of their natural liberty without creating any conflict with “the due exercise of the powers of government, for the common good.”124 In 1816, for instance, Thomas Jefferson wrote that “the idea is quite unfounded, that on entering into society we give up any natural right.”125 But Jefferson clarified that these natural rights were limited not only by a prohibition on “commit[ing] aggression on the equal rights of another” but also by “the natural duty of contributing to the necessities of the society.”126 Consequently, by incorporating social duties into natural law, no conflict arose between the preservation of natural rights and the exercise of governmental powers to promote the public good.127 “To give up the performance of any action, which is forbidden by the laws of moral and social nature,” Nathaniel Chipman insisted, “cannot be deemed a sacrifice.”128
This is not to say that natural rights were identically defined after the formation of a political society. Some natural rights, Chipman explained, “to render them universally reciprocal in society, may be subjected to certain modifications.”129 Yet, these rights, he insisted, “can never justly be abridged,” meaning they could not “suffer any dim[i]nution.”130 This refrain was especially familiar with respect to property rights. Many people “consider property as a natural right,” James Wilson noted, but one that “may be extended or modified by positive institutions.”131 Accordingly, as Wilson explained:
[B]y the municipal law, some things may be prohibited, which are not prohibited by the law of nature: but . . . every citizen will gain more liberty than he can lose by these prohibitions . . . . Upon the whole, therefore, man’s natural liberty, instead of being abridged, may be increased and secured in a government, which is good and wise.132
A natural right that could not be modified, by contrast, was an aspect of natural liberty over which the government simply had no authority.133
For those who thought that individuals gave up some of their natural liberty in a social contract, however, retained natural liberty was still regulable so long as those regulations were in pursuit of the public good and made by a representative legislature.134 As William Blackstone observed, natural liberty could be “so far restrained by human laws . . . as is necessary and expedient for the general advantage of the public.”135Importantly, this framework did not endorse governmental power to abridge retained natural rights. Rather, it simply recognized that individuals in a political society assumed certain reciprocal obligations that did not exist in a state of nature.136 Regard for the public good, in other words, was always implicit in the retention of natural rights.
In sum, whether inherently limited by natural law or qualified by an imagined social contract, retained natural rights were circumscribed by political authority to pursue the general welfare. Decisions about the public good, however, were left to the people and their representatives—not to judges—thus making natural rights more of a constitutional lodestar than a source of judicially enforceable law.137 Natural rights, in other words, dictated who could regulate natural liberty and why that liberty could be restricted, but they typically were not “rights” in the modern sense of being absolute or presumptive barriers to governmental regulation.
Speaking, writing, and publishing were thus ordinarily subject to restrictions under laws that promoted the public good. The principle that “Speech is a natural Right . . . reserved,” Thomas Hayter explained, was consistent with “the Power of Legislators, to restrain every impious, or immoral Abuse of speech” because “The principal End of every Legislature is the public Good.”138 Or, as another writer put it, the “right to speak and act without controul . . . is limited by the law—Political liberty consists in a freedom of speech and action, so far as the laws of a community will permit, and no farther.”139
Consequently, even though the Founders broadly acknowledged that speaking, writing, and publishing were among their natural rights, governmental limitations of expressive freedom were commonplace. Blasphemy and profane swearing, for instance, were thought to be harmful to society and were thus subject to governmental regulation even though they did not directly interfere with the rights of others.140 Some states even banned theater performances because of their morally corrupting influence.141 Although stated without qualification, and often viewed by modern interpreters as being unconditional,142 natural rights were always implicitly qualified, with the scope of their qualifications often turning on assessments of public policy.
Yet while the Founders broadly agreed that governmental power should be defined and exercised only to promote the general welfare, they often disagreed passionately about the details. As Joseph Priestley noted, there was “a real difficulty in determining what general rules, respecting the extent of the power of government, or of governors, are most conducive to the public good.”143 And nowhere was this difficulty more pronounced than the long-running controversy over sedition laws.
Arguments for punishing sedition were straightforward. It was “necessary for the preservation of peace and good order,” Alexander Addison of Pennsylvania explained, “to punish any dangerous or offensive writing, which, when published, shall, on a fair and impartial trial, be adjudged of a pernicious tendency.”144 Proponents of this view rejected the argument that narrowly tailored sedition laws would stifle useful criticisms of government and that counter-speech was sufficient to prevent lasting harm.145 “It may be said, that an unrestrained license to publish on the conduct of public men, would operate as a restraint upon [the government], and thus promote the public good,” Massachusetts Governor James Sullivan wrote, “but this is not true; an unrestrained license to publish slander against public officers, would . . . answer no possible valuable purpose to the community.”146 In fact, some argued that it was even more necessary to punish sedition in a republic. “In a Republican Government, where public opinion rules everything,” John Rutledge Jr. insisted during the Federalist effort to reauthorize the Sedition Act in 1801, “it is all-important that truth should be the basis of public information.”147
Other eighteenth-century writers, however, argued that punishing sedition would, in the long run, harm the general welfare, even though sedition itself was deleterious. “The great object of society—that object for which alone government itself has been instituted, is the general good,” Elizabeth Ryland Priestley wrote in 1800.148Thus, she continued, “It may perhaps be urged, and plausibly urged, that the welfare of the community may sometimes, and in some cases, require certain restrictions on [an] unlimited right of enquiry: that publications exciting to insurrection or immorality for instance, ought to be checked or suppressed.”149 Yet “ascertaining the proper boundary of such restrictions” would be vexing, she observed, and governmental power to regulate harmful speech, “once conceded, may be extended to every [opinion] which insidious despotism may think fit to hold out as dangerous.”150 Moreover, as Republicans frequently argued, fear of being prosecuted might have a chilling effect on useful criticisms of government.151
Notably, these arguments all relied on contingent judgments about public policy—not an understanding of natural rights that categorically permitted or barred governmental efforts to suppress expression, irrespective of the public good.152 Americans thus offered vastly different visions of how far expressive freedom should extend (due to differing calculations of what best furthered the public good) even while sharing the same conceptual understanding of speech and press freedoms.
Further evidence of the Founders’ conceptual understanding of expressive freedom comes from their recognition of an equality between speech and press freedoms and, at the same time, their acceptance of distinct legal rules regarding oral and written statements. “The freedom of speech of writing and of printing are on equal grounds by the words of the constitution,” one commentator observed in 1782, referring to the Pennsylvania constitution.153 As concepts, therefore, the freedoms of speaking, writing, and publishing were identical, allowing the government to punish only “the disseminating or making public of falsehoods, or bad sentiments, destructive of the ends of society.”154 Yet these equivalent principles were perfectly consistent with broader liability and harsher punishment for written libels. “The reason,” the commentator explained, was that written statements were “more extended” and “more strongly fixed,” thus posing a greater threat to public order.155 In short, speech and press freedoms were equivalent, as natural rights, but the legal implications of these rights differed.
B. Inalienable Natural Rights and the Freedom of Opinion
Unlike ordinary natural rights, which were regulable to promote the public good, certain inalienable natural rights imposed more determinate constraints on legislative power.156 These rights, Nathaniel Chipman explained, were aspects of natural liberty that “can never justly be subject to civil regulations, or to the control of external power.”157 Some writers limited this category to the freedoms of conscience and thought158 without necessarily including a correlative liberty to exercise religion or to express thoughts.159 “Opinions are not the objects of legislation,” James Madison succinctly explained to his congressional colleagues in 1794.160 Few would have disagreed. But by the late eighteenth century, Americans widely embraced the idea that the government could not prohibit well-intentioned statements of one’s thoughts, either.
Opinions were sacrosanct because they were understood to be non-volitional.161 Unlike “Volition, or Willing,” John Locke explained, “in bare naked Perception the Mind is, for the most part, only passive; and what it perceives, it cannot avoid perceiving.”162 Consequently, in Francis Hutcheson’s words, “the Right of private Judgment, or of our inward Sentiments, is unalienable; since we cannot command ourselves to think what either we our selves, or any other Person pleases.”163 Or, as Madison put it in his famous Memorial and Remonstrance, “the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.”164 The freedom of opinion was thus, at its core, a freedom against governmental efforts to punish people for their thoughts. (The Founding Era term “freedom of opinion” is thus somewhat misleading; the essence of the principle was protection for non-volitional thoughts.165)
Americans often invoked the freedom to have opinions to defend a correlative freedom to express opinions.166 Among the natural rights that individuals had not surrendered to government, Thomas Jefferson wrote in 1789, were “the rights of thinking, and publishing our thoughts by speaking or writing.”167 The inalienability of this liberty was broadly recognized. All men had a right “of speaking and writing their minds—a right, of which no law can divest them,” Congressman John Vining observed in January 1791, before the First Amendment was ratified.168 This right, Fisher Ames echoed in agreement, was “an unalienable right, which you cannot take from them, nor can they divest themselves of.”169 Any abridgment of that right, he insisted, would be “nugatory.”170
The freedom to express thoughts, however, was limited to honest statements—not efforts to deceive others. “The true liberty of the press is amply secured by permitting every man to publish his opinions,” Pennsylvania jurist Thomas McKean explained in 1788, “but it is due to the peace and dignity of society to enquire into the motives of such publications, and to distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame.”171 For that reason, this Article often refers to a “freedom to make well-intentioned statements of one’s thoughts.” The Founders, immersed in their own constitutional language, hardly needed such a periphrastic term; they could simply invoke the “freedom of opinion” or “freedom of speech.”
Sedition laws were thus facially consistent with the freedom of opinion when confined to false and malicious speech. “Because the Constitution guaranties the right of expressing our opinions, and the freedom of the press,” Federalist John Allen asked rhetorically during the congressional debates over the Sedition Act, “am I at liberty to falsely call you a thief, a murderer, an atheist?”172 Answering his own question, and again treating the First Amendment as guaranteeing “the liberty of opinion and freedom of the press,”173 Allen implored that “[t]he freedom of the press and opinions was never understood to give the right of publishing falsehoods and slanders, nor of exciting sedition, insurrection, and slaughter, with impunity. A man was always answerable for the malicious publication of falsehood; and what more does this bill require?”174 Over and over, Federalists emphasized the requirement of “a false and malicious intention.”175
Opponents of the Adams Administration saw through the Federalist charade, viewing the Sedition Act as part of “a legislative program designed to cripple, if not destroy, the Republican Party.”176 Frequent complaints that Federalists had “countenance[d] a punishment, for mere freedom of opinion,” thus appear justified.177 Yet in their more contemplative moments, some Republicans recognized that the Sedition Act itself fell short of abridging the freedom of opinion. If the law were perfectly administered, one Virginia editorial noted, “No person . . . would be the subjects of ruin under this statute, unless they annexed to those opinions a design that was not pure.”178 Or, as libertarian writer John Thomson acknowledged, if prosecutions “were not for the publication of opinions, then the Constitution has not been violated by them.”179
Also notable about the Sedition Act controversy, however, was the nearly universal acknowledgment by Federalists that well-intentioned statements of opinion, including criticisms of government, were constitutionally shielded.180 “[I]t is well known,” Alexander Addison remarked, “that, as by the common law of England, so by the common law of America, and by the Sedition act, every individual is at liberty to expose, in the strongest terms, consistent with decency and truth all the errors of any department of the government.”181 Federalists, in other words, firmly rejected the long-discredited rule that “no private man can take upon him[self] to write concerning the government at all.”182 By limiting the Sedition Act to false and malicious statements, and by providing a truth defense,183 Federalists could reasonably claim fidelity to this longstanding respect for the freedom of opinion. Indeed, Federalists sought to renew the Sedition Act in January 1801—with a new administration poised to take the helm—because the Act, in their view, had “enlarged instead of abridg[ed] the ‘liberty of the press.’”184
Scholars, however, routinely overlook Federalist support for expressive freedom. Defenders of the Sedition Act, one author writes, equated “the freedom of speech and press” with an understanding that “government could restrain speech post-publication or post-utterance in whatever way it pleased.”185 In fact, not a single Federalist in Congress took that view. To be sure, many Federalists interpreted the freedom of the press as simply a rule against prior restraints—an idea that we will turn to next.186 But the First Amendment, as Federalist Harrison Gray Otis explained, also guaranteed “the liberty of writing, publishing, and speaking, one’s thoughts, under the condition of being answerable to the injured party, whether it be the Government or an individual, for false, malicious, and seditious expressions, whether spoken or written.”187 This was a qualified liberty, of course, and perhaps inadequate when executed by a partisan administration and partisan judiciary. But Federalists widely accepted the freedom of opinion, even in the late 1790s.
Readers may be curious about the scope of the freedom to make well-intentioned statements of one’s thoughts—whether, for instance, it applied to certain forms of expressive conduct like flag burning or political donations. Historical evidence offers no clarion answers, but the principles of social-contract theory frame the inquiry in a way that disfavors categorical protection for expressive conduct. To be sure, engaging in expressive behavior was an innate human capacity, so it was properly understood as falling within the natural right of expressive freedom.188 But there was little basis for recognizing an inalienable natural right of expressive conduct. The scope of inalienable rights, after all, depended on whether individuals were physically capable of parting with certain aspects of natural liberty and, if so, whether collective control of that liberty would serve the public good.189 Some expressive conduct, like instinctive smiles, surely fell on the side of inalienability. But when expressive conduct caused harm and governmental power to restrict that conduct served the public good, there is no reason to think that the freedom of opinion nonetheless immunized that conduct.
Consequently, although the freedom of opinion was fixed in some respects—allowing individuals to criticize the government in good faith, for instance—determining its scope called for the same policy-driven analysis that characterized the Founders’ general approach to natural rights. In short, outside of the core protection for well-intentioned statements of one’s thoughts, the boundaries of the freedom of opinion depended on political rather than judicial judgments.
C. Common-Law Rights and the Freedom of the Press
In addition to inalienable natural rights, state declarations of rights in the 1770s and 1780s also included numerous fundamental positive rights, like the right to trial by jury and the rule against ex post facto laws. Unlike “natural liberty . . . retain[ed],” one Anti-Federalist noted, fundamental positive rights were “particular engagements of protection, on the part of government.”190 These were rights defined in relation to governmental authority. And what made them “fundamental” was an acceptance of their inviolability, usually based on their recognition in the social contract or constitution.191 In short, these rights were, as Thomas Jefferson explained in 1790, “certain fences which experience has proved particularly efficacious against wrong, and rarely obstructive of right.”192 Interestingly, Jefferson classified the freedom of the press as a fundamental positive right.193
Scholars typically assert that the freedom of speech and the freedom of the press were equivalent,194 and, as we have seen, those concepts were equivalent as natural rights.195 Yet in the context of enumerated bills of rights, discerning the meanings of these freedoms is more complicated and reveals an important difference between speech and press freedoms.196 The Pennsylvania Constitution of 1776, for instance, separated the “right to freedom of speech, and of writing, and publishing” from “the freedom of the press.”197 That split strongly suggests a distinction in meaning. And Jefferson’s letter suggests an intriguing explanation: the term “freedom of the press” could denote a particular fundamental positive right.
The content of this right was widely known. “The liberty of the press,” William Blackstone had famously declared, “consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”198And without a governmental censor, local juries rather than royal agents controlled how far publishing could be restricted. “The liberty of the press, as established in England,” Jean Louis de Lolme wrote in 1775, effectively meant that courts considering libels against printers “must . . . proceed by the Trial by Jury.”199
Americans, and particularly those with legal training, frequently echoed these ideas. “[W]hat is meant by the liberty of the press,” James Wilson observed during the 1787 ratification debates, “is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual.”200Others mentioned the importance of empowering juries to determine the proper bounds of expressive freedom. “[S]hould I be unjustly accused of [sedition],” Virginia lawyer Alexander White remarked, “the trial by a jury of my countrymen is my security—if what I have said or wrote corresponds with their general sense of the subject, I shall be acquitted.”201
In sum, although many of the Founders discussed press freedom as a natural right, it also had a readily available meaning as a fundamental positive right against press licensing, thus empowering juries to determine the proper scope of expressive freedom.
D. Nature and Law
The notion that speech and press freedoms referred to natural rights, inalienable natural rights, and fundamental positive rights may appear confused or even contradictory. In the eighteenth century, however, these rights were closely intertwined.202 The fundamental positive rights embodied in common law informed understandings of natural rights, and vice versa.
The common law did not directly recognize natural rights as a set of positive rights. Natural rights, after all, were simply the liberty that humans would enjoy in a state of nature, bounded by the dictates of natural law. In contrast to positive rights, they were not defined in terms of governmental action or inaction. When a constitution protected certain natural rights against abridgment, however, it became important to determine the scope of retained natural liberty. And to assist with this task, the Founders naturally turned to positive law, and particularly the common law.
The common law was probative, in part, because it helped define the natural-law boundaries of natural rights.203 Natural law, we must recall, was not a finely tuned set of legal rules. Rather, it embodied the dictates of reason and justice. “We discover it,” James Wilson explained, “by our conscience, by our reason, and by the Holy Scriptures.”204 Not surprisingly, therefore, the Founders recognized considerable underdeterminacy about what natural law required.205 “[W]hoever expects to find, in [reason, conscience, and the Holy Scriptures], particular directions for every moral doubt which arises,” Wilson cautioned, “expects more than he will find.”206
In day-to-day practice, then, natural law itself provided little guidance about how to resolve difficult legal questions. Instead, lawyers and judges used a system of customary legal rules known as the common law. Yet the legal system operated on the assumption—or at least the fiction—that the common law and natural law were in harmony.207 “The common law,” Alexander Addison characteristically observed, “is founded on the law of nature and the revelation of God.”208 Consequently, the common law could help determine the proper boundaries of natural liberty. Governmental powers recognized at common law were presumptively acceptable, while common-law limits on those powers (such as the rule against prior restraints) recognized presumptively unjustified abridgments of natural rights.
Moreover, for those who viewed social obligations as stemming from common consent rather than from natural law, the common law helped delineate the scope of those obligations. The common law, after all, had the presumptive consent of the people over an extended period. “[L]ong and uniform custom,” English jurist Richard Wooddeson explained, “bestows a sanction, as evidence of universal approbation and acquiescence.”209 Though certainly not immune to change,210 the common law at least presumptively comported with the reciprocal obligations that individuals had assumed in the social contract. In short, customary positive law helped reveal the proper scope of natural liberty.
At the same time, Americans sometimes used natural-law reasoning to shape their understanding of positive law. This approach reflected the prevalent view that positive law should reflect and conform to natural law. “[M]unicipal laws are under the control of the law of nature,” Wilson noted in his law lectures, meaning that natural law was superior to positive law.211 Because of its underdeterminacy, natural-law reasoning was typically reserved within legal circles for resolving ambiguities in the common law or statutory law; judicial assessments of natural justice could not displace positive law.212 Among the laity, however, the priority of natural law sometimes prompted calls for an abandonment of legal pedantry. “It is our business to do justice between the parties,” John Dudley of New Hampshire opined about the jury’s role, “not by any quirks of the law out of Coke or Blackstone, books I have never read, and never will, but by common sense and common honesty as between man and man.”213 Some Republican lawyers took a similar view. The meaning of Virginia’s press clause, lawyer George Hay opined, “presents a great constitutional question, the solution of which depends, not on cases and precedents furnished by books, but on principles whose origin is to be traced in the law of nature, and whose validity depends on their tendency to promote the permanent interests of mankind.”214
Not surprisingly, then, forceful disagreements emerged about the extent to which the common law defined the scope of natural rights.215 During the ratification debates, for instance, lawyers like James Wilson, Rufus King, and Alexander White equated press freedom with the common-law rule against press licensing.216 A decade later, when Republicans attacked the Sedition Act of 1798 as violating the freedom of the press, Federalist lawyers again turned to the familiar terrain of legal authority. “By the freedom of the press,” jurist Alexander Addison insisted, the Press Clause “must be understood to mean the freedom of the press as it then existed at common law in all the states.”217
For Americans with less elitist inclinations, however, determining the scope of natural rights was not exclusively within the ken of professionally trained lawyers. James Madison’s famous Virginia Report of 1800, for instance, made arguments from “plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts” to wage an extended attack on Federalist reliance upon the common law.218 It would be a “mockery” to confine press freedom to a rule against prior restraint, Madison implored, because post-publication punishments would have the same effect of suppressing expression.219 Moreover, practical experience showed that American printers enjoyed a “freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law.”220 It was thus “natural and necessary,” Madison concluded, that press freedom in the United States went beyond the confines of English common law.221
Scholars, it is worth cautioning, have overstressed this part of the Virginia Report. Madison, whose views on expressive freedom were more liberal than those of his colleagues, plainly identified these observations as being “for consideration only,” without, “by any means, intend[ing] to rest the [constitutional] question on them.”222 (The Virginia Report actually rested its constitutional argument on the First Amendment’s supposed denial of federal power to impose any restrictions on printers.)223 Nonetheless, Madison’s mode of reasoning in this political dictum reflected an important strand of Republican thought grounded in a natural-rights view of expressive freedom.
III. explicating the first amendment
Now that we have a grasp on how the Founders talked about rights in general, and about speech and press freedoms in particular, we can more closely evaluate the original meanings of the First Amendment.
This Part begins with an analysis of the ratification debates and drafting of the First Amendment. It draws two principal conclusions. First, the impetus for a bill of rights was a desire to enumerate well-recognized rights, not create new ones. Consequently, historical context strongly supports the view that the Speech and Press Clauses incorporated the meanings of expressive freedom discussed in Part II. Second, although originalist scholarship tends to treat speech and press freedoms as equivalent, the ratification debates reinforce that the Founders often referred to these ideas distinctly, particularly when mentioning press freedom as a fundamental common-law right.
Then, Section III.B synthesizes the evidence in Part II and Section III.A to assess the most likely original meanings of the Speech and Press Clauses. It argues that the Speech and Press Clauses recognized both abstract principles and concrete legal rules that were grounded in Founding Era rights discourse. The Section then responds to some competing accounts of the First Amendment’s original meaning.
A. Enumerating Expressive Freedoms
The Constitution drafted by the Philadelphia Convention famously lacked a declaration of rights.224This omission quickly became a favorite point of attack for the opponents of ratification, commonly known as the Anti-Federalists.225 Especially dangerous, Anti-Federalists insisted, was unchecked congressional power under the Necessary and Proper Clause.226 “The powers, rights, and authority, granted to the general government by this constitution,” Brutus explained, “are as complete, with respect to every object to which they extend, as that of any state government.”227Consequently, a federal declaration of rights was every bit as necessary as state declarations in order to restrict the means of federal power.
Anti-Federalists often focused their criticisms on the lack of protection for the freedom of the press. But their references to press freedom were usually cursory, with no elaboration about what the term meant or what a declaration in its favor would accomplish. Often Anti-Federalists simply pointed out numerous ways that the federal government could regulate printers—whether through “the trial of libels, or pretended libels against the United States,”228taxes on newspapers,229 the copyright authority,230 or federal power over the capital district.231 Importantly, these worries often went beyond mere concern about prior restraints,232 but Anti-Federalists rarely suggested how an enumerated guarantee of press freedom would constrain federal authority.233
Notably, the freedom of speech played almost no role in the public jousting that occurred in newspapers, pamphlets, and state ratification conventions.234 Anti-Federalist fears about unenumerated rights, it turns out, usually focused on positive rights that imposed more determinate limits on governmental authority.235 (Scholars, by contrast, often describe the freedom of speech as an important Anti-Federalist issue, but their evidence notably mentions only the liberty of the press, again highlighting the scholarly conflation of speech and press rights.)236 Amidst the wide-ranging and creative arsenal of Anti-Federalist arguments, concern about the freedom of speech was conspicuously missing.
In response to Anti-Federalist admonitions about the liberty of the press, Federalists generally made two related arguments. First, many explained that bills of rights were merely declaratory of pre-existing rights and were therefore legally unnecessary.237 It was “absurd to construe the silence . . . into a total extinction” of the press right, John Jay insisted, because “silence and blank paper neither grant nor take away any thing.”238 The Virginia and New York ratification conventions later passed declaratory resolutions making the same point.239 Indeed, many Federalists thought that fundamental positive rights were recognized in the social contract,240 obviating any need for subsequent enumeration, just as modern legislation hardly needs to specify that it operates only within constitutional boundaries.
Second, Federalist denials of authority to abridge the liberty of the press relied on the lack of any enumerated power that would justify a licensing regime. In response to the Anti-Federalist argument that the federal government might abridge the freedom of the press under the taxing power, for instance, Alexander Hamilton asked in Federalist No. 84, “why declare that things shall not be done which there is no power to do?”241But Hamilton, unlike some of his Federalist colleagues,242 was not rejecting all federal power over printers. Rather, he clarified, “declarations . . . in favour of the freedom of the press” were not understood to be “a constitutional impediment to the impositions of duties upon publications.”243
When it came to natural rights, Federalists used a similar tack. Rather than denying any federal authority over speech, Federalists insisted that protections for natural liberty were superfluous under republican governments. As we have seen,244 that argument had considerable merit. In some sense, the people in a republic retained every aspect of natural liberty because no natural rights were surrendered to an unaccountable monarch. Enumerating retained natural rights, Federalists therefore concluded, would be pointless. In republics, Alexander Hamilton explained in Federalist No. 84, “the people surrender nothing, and as they retain every thing, they have no need of particular reservations.”245
As the ratification contest dragged on, however, some Federalists gradually perceived a need for amendments to quell Anti-Federalist opposition.246 Declaring rights, they realized, would help undercut Anti-Federalist calls for broader reforms.247Some men, including Thomas Jefferson and James Madison, also came to recognize merit in the Anti-Federalist arguments.248Although Congress was confined to enumerated powers, Madison explained in his speech introducing a draft of amendments to the House of Representatives that it “has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent.”249
Madison was not admitting that Congress could properly abridge customary rights. Nonetheless, Congress had power under the Necessary and Proper Clause “to fulfil every purpose for which the government was established,” and it was “for them to judge of the necessity and propriety to accomplish those special purposes.”250Madison had previously criticized declarations of rights as mere “paper barriers,” but in his congressional speech he justified them as having “a tendency to impress some degree of respect for [rights], to establish the public opinion in their favor, and rouse the attention of the whole community.”251Moreover, he noted, a written guarantee would help embolden judges to uphold their legal duty to enforce certain rights.252In short, an enumeration of rights might be useful after all.
Madison’s initial proposal for constitutional recognition of expressive freedom was divided in two parts: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”253His notes suggest that he also remarked to his colleagues that speech and conscience were among the “natural rights, retained.”254 By contrast, his separation of the right of speaking, writing, and publishing from the freedom of the press suggests a positive-law connotation of press freedom.255
This dual structure became clearer within the House Committee of Style when Roger Sherman proposed dividing these clauses into separate articles. In one article, he addressed “certain natural rights which are retained,” including the right “of Speaking, writing and publishing . . . with decency and freedom.”256 Six articles later, he presented a two-part ban on licensing rules: “Congress shall not have power to grant any monopoly or exclusive advantages of Commerce to any person or Company; nor to restrain the liberty of the Press.”257Notably, only Sherman’s proposed press clause, surely meant as a rule against press licensing, was framed as a categorical denial of congressional power.
For unknown reasons, but probably just for sake of brevity, the Committee of Style shortened Madison’s proposal to read: “The freedom of speech, and of the press, . . . shall not be infringed.”258 And, with various revisions accepted in the Senate, the third proposed amendment eventually read: “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.”259 The drafters of the final version of the amendment thus, perhaps unwittingly, stripped away the earlier textual indication that speech and press freedoms had distinct meanings.
B. Original Meanings
So, what did the Speech and Press Clauses originally mean? A detailed answer to that question would require an account of what it means for a clause to have a “meaning,”260 both conceptually and in terms of evidentiary thresholds. And the Founders often disagreed about methods of constitutional interpretation, so assigning a definitive “original meaning” to any constitutional clause may require contestable methodological choices.261 Rather than venturing down that path, this Section simply points out a range of possibilities that—while different in some respects—display a substantial degree of agreement among Founding Era elites. In doing so, it focuses on conceptual meanings of the Speech and Press Clauses, not their precise doctrinal details. This synthesis suggests that the best account of the First Amendment’s meaning is likely one rooted in a multifaceted view of expressive freedom, recognizing the interplay of natural rights, inalienable natural rights, and fundamental common-law rights. Importantly, this account reveals, at least in some respects, distinct meanings of the Speech and Press Clauses.
Because expression was a natural right, one possibility is that the Speech and Press Clauses originally referred exclusively to ordinary natural rights that were fully regulable to promote the public good.262 Under this view, customary protections for speech and press freedoms would likely suggest the proper bounds of natural liberty—perhaps even directing judges to interpret statutes “equitably” to avoid conflicts with these longstanding rules—but without imposing any fixed, judicially enforceable restraints on legislative power.263 The Speech and Press Clauses, in other words, might have had legal implications without constitutionally ossifying any particular set of legal rules.
This is a plausible view. Speaking, writing, and publishing were liberties that people could exercise without governmental intervention, and the Founders thus viewed these freedoms as being among their natural rights. This liberty, moreover, was circumscribed by social obligations—either imposed by natural law or voluntarily assumed in a social contract—and therefore only restrictions of expression beyond those that promoted the public good were “abridgments” of natural rights.264 Consequently, as Republican lawyer George Hay summarized in 1799, a natural-rights understanding of the First Amendment would “amount precisely to the privilege of publishing,” as well as speaking and writing, “as far as the legislative power shall say, the public good requires.”265
Other Founding Era commentary supports the possibility that the Speech and Press Clauses referred exclusively to natural rights. Not all aspects of Founding Era bills of rights, we must recall, had determinate meanings. Indeed, some declarations of rights announced principles that were, as Alexander Hamilton disparagingly put it in Federalist No. 84, “aphorisms” that “would sound much better in a treatise of ethics than in a constitution of government.”266 Provocatively, and perhaps disingenuously, Hamilton insisted that the freedom of the press was so indeterminate that “whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.”267
Nonetheless, the Founders often described declarations of rights as supplying stricter limits on legislative authority. A bill of rights, Theophilus Parsons remarked, should specify both “unalienable natural rights,” over which “the supreme power hath no control,” and a set of fundamental positive rights, “also unassailable by the supreme power.”268 Indeed, one of James Madison’s principal rationales for a bill of rights in 1789 was to limit the “discretionary powers with respect to the means” of federal authority.269 If state bills of rights were useful “for restraining the state governments,” Madison explained, “there is like reason for restraining the federal government.”270
Viewed in this light, it makes sense to construe the First Amendment as imposing at least some fixed limits on federal power. There is a compelling case, for instance, that the Press Clause codified at least a positive right against press licensing, thus putting juries in charge of restricting speech.271 Meanwhile, the freedom of speaking, writing, and publishing—likely invoked in the Speech Clause—shielded from regulation any well-intentioned statements of one’s thoughts (subject, of course, to the natural-law proscription against abridging the rights of others).272 As with most other enumerated rights, these principles constrained the means that the federal government could employ when exercising its other powers. And this positive-rights dimension of the Speech and Press Clauses reveals an important distinction in their meanings.
Following this train of thought, perhaps the Speech and Press Clauses referred exclusively to these more determinate customary rules, without directly recognizing a retention of the broader (but shallower) natural right of expressive freedom. Federalists in the late 1790s, it turns out, often interpreted the First Amendment in precisely this way. “By the freedom of the press,” Addison implored, the Press Clause “must be understood to mean the freedom of the press as it then existed at common law in all the states.”273
Finally, perhaps the Speech and Press Clauses in the First Amendment recognized both the natural right of expressive freedom (in which the Speech and Press Clauses had a common meaning) and the more determinate customary protections for expression (in which the Speech and Press Clauses had distinct meanings). Like the other historical accounts of the First Amendment’s original meaning, this interpretation recognizes the interplay between natural rights, inalienable natural rights, and positive law, and it differs only by suggesting that this full spectrum of rights was incorporated into the Constitution itself. The First Amendment, on this account, recognized any customary legal principles that protected speech and the press while also recognizing that, apart from these rules, Congress was otherwise free to limit expression in pursuit of the public good (subject, of course, to any other constitutional constraints). In my view, this account best fits the available historical evidence, which shows the Founders constantly and fluidly moving between different notions of speech and press freedoms. Moreover, isolating First Amendment rights to a particular aspect of Founding Era expressive freedom seems dubious in light of the Ninth Amendment’s implied reservation of rights.
In sum, it remains debatable whether the Speech and Press Clauses directly recognized ordinary natural rights, a set of more determinate legal rights, or both. But because of the fluid relationship between natural rights and positive rights, all of these possibilities point in basically the same direction: the First Amendment recognized (either implicitly or outright) the ordinary natural right of expressive freedom along with (either absolute or presumptive) protection for a set of customary rules with more determinate legal meanings.274
Other accounts of original meaning, however, are much less plausible. A common view is that the “freedom of speech” in the First Amendment was analogous to the “freedom of speech and debate” mentioned in Article I (and in various state constitutions).275That freedom was a separation-of-powers rule, barring legislators from being punished by the executive or judiciary for their speeches and activities within the legislative chamber.276 But legislatures could, and occasionally did, punish their own members at will.277 Based on this supposed genealogy of the freedom of speech, scholars often conclude that the First Amendment’s protections are confined to political expression—the type of speech that typically occurs in legislative assemblies.278
This interpretation of the Speech Clause has a variety of problems. First and foremost, legislative privilege played basically no role in Founding Era debates about the First Amendment.279This lack of historical evidence may not bother “intratextualists,” who are known to “draw inferences from the patterns of words that appear in the Constitution even in the absence of other evidence that these patterns were consciously intended.”280 This Article’s analysis, however, focuses on historical understandings of speech and press freedoms, not modern textualist theories. And there simply is no evidence that anybody in the late 1780s thought that the freedom of speech was directly analogous to, or drew its meaning from, the legislative privilege of speech and debate. Another difficulty is that the Founding Era right of speaking, writing, and publishing clearly extended to any subject, not just to political matters.281
Other scholars assert that the Speech Clause made speech “not subject to legislative regulation for the public good” but “nevertheless limited by the rights of others.”282 Reading the text of the First Amendment in isolation might support this so-called “libertarian” view. For those Founders who defined natural rights without regard to social obligations, after all, restrictions of natural liberty to promote the common good could easily be understood as “abridgments” of the liberty that had existed in a state of nature.
Viewed in historical context, however, this “libertarian” interpretation of the First Amendment is incomplete. To be sure, the Founders thought that the freedom to make well-intentioned statements of one’s views was an inalienable natural right, rendering improper any restrictions that did not flow from natural law. And since the government itself did not possess natural rights that could be abridged, it was beyond the power of the government to punish speech that criticized the government in good faith.283 These were important departures from the view that speech was always regulable in the public interest.
But the freedom of opinion did not encompass all expression. Individuals who joined together in a social contract, after all, had no reason to immunize efforts to lie or mislead. Nor did they need to prevent the government from preserving norms of civility and morality, like rules against blasphemy and profane swearing. Indeed, the Founders constantly mentioned that the inalienable right to speak was limited to those who spoke with decency and truth,284 and state governments routinely and uncontroversially restricted plenty of speech that did not directly violate the rights of others.285 Evidence from the late 1780s and early 1790s provides no indication that the First Amendment adopted a different understanding of expressive freedom.
Just the opposite, in fact. The Founders widely viewed enumeration as a conservative project meant to preserve existing rights, not to change their meaning or scope.286 The proposed amendments, James Madison informed his congressional colleagues, provided for “simple and acknowledged principles” and not ones of “a doubtful nature.”287 The purpose of enumeration, in other words, was to guarantee at the federal level the rights already recognized by state constitutions and social contracts. Consequently, to the extent that states could regulate expression without “abridging” reserved natural liberty, the federal government could properly do so as well.288 The freedom of expression that could not be “abridged,” in other words, was a liberty qualified by social obligations that stemmed either from natural law or from the imagined social contract.289
Nor did the First Amendment, as some scholars suggest, elevate speech to a constitutionally privileged liberty interest to be defended by free-ranging judicial supervision.290 Founding Era judges, after all, were confined to defending “marked and settled boundaries” of governmental authority, disregarding legislation only where constitutional violations were clear.291 Judges could not apply jurisprudential concepts “regulated by no fixed standard” on which “the ablest and the purest men have differed,”292 even when those principles were enumerated in a written Constitution.293 Judicial applications of the First Amendment were therefore limited to enforcing customary legal principles,294 even though the concept of expressive freedom, as a natural right, had a far broader range of potential implications.
Finally, the First Amendment did not comprehensively ban federal regulations of expression.295 This view became prominent only later in the 1790s, when Republicans realized that Federalist control of all three branches of the federal government, combined with the administration’s ability to choose jurors, threatened their political survival.296 The First Amendment, many Republicans argued, imposed a “total exemption of the press from any kind of legislative control,” leaving state common-law suits for abridgments of private rights as the only permissible limits on expression.297
Modern proponents of this view find support in the First Amendment’s opening phrase, “Congress shall make no law.”298 However, a provision that “Congress shall make no law past some threshold”—such as the abridgment of the freedom of speech or of the press—simply does not suggest a lack of regulatory power leading up to that threshold. If anything, it implies just the opposite, as Federalist defenders of the Sedition Act repeatedly pointed out with glee.299
Another amendment passed by the House of Representatives in 1789 reinforces that the First Amendment did not withdraw all authority regarding speech and the press. In addition to declaring that “[t]he Freedom of Speech, and of the Press . . . shall not be infringed”—a rule applicable only to the federal government—the House passed a proposal that “[n]o State shall infringe . . . the freedom of speech, or of the press.”300 If infringements of speech and press freedoms arose from any controls over expression, then this proposal would have barred state laws against libel, defamation, conspiracy, threats, profanity, blasphemy, perjury, sedition, and so forth. All of these laws, after all, suppress various forms of communication. But no evidence suggests that the House of Representatives was radically proposing to bar any federal or state limits on expression.301Rather, the First Amendment—just like its state-restraining counterparts—left ample room for the government to regulate speech in promotion of the public good, so long as it respected customary legal protections as well.
IV. using history
How might this history inform modern constitutional interpretation? Most judges and scholars incorporate history into their interpretative method in some way.302 But uses of history vary substantially. Originalism in particular now comes in many forms, and the Founding Era history of speech and press freedoms might inform originalist analysis in a range of ways.
One option is simply to return wholesale to a Founding Era perspective, recognizing that judges are not well positioned to evaluate whether a legislature has acted in good faith or whether restrictions of speech promote the public good.303 In short, this approach would call for dismantling a huge swath of modern free-speech law. For instance, the Supreme Court’s foundational decision in New York Times v. Sullivan,304 which makes it harder for public officials to sue for defamation, conflicts even with the libertarian strand of Founding Era thought.305 And while the Founders viewed well-intentioned statements of one’s thoughts as shielded from regulation, there is no indication that this principle would have extended to, say, donations to a political candidate.306 Even assuming that giving money to a campaign is expressive, or is an exercise of the natural right to freedom of association, this activity was among the countless aspects of natural liberty subject to regulations that promote the general welfare.
Of course, many who use history in constitutional interpretation also accept the authority of precedent and may thus perceive modern speech law as too entrenched to be properly overruled.307 Even under this view, Founding Era history may still have “gravitational force” in resolving ambiguities in modern doctrine.308 Judges, for instance, often use conflicting definitions of what it means for a speech regulation to be “content based,” and a historically grounded approach may help resolve contested issues of this sort.309
If we set aside Founding Era conceptions about the judicial role,310 however, then modern doctrine is far easier—though perhaps still difficult—to justify on historical terms. In particular, a natural-rights reading of the Speech Clause would require the government to act for reasons that serve the public good, and scholars have noted that speech doctrine is largely structured as a way of smoking out illicit motives.311 The heightened scrutiny that applies to content-based regulations, for instance, may correspond to an increased risk of parochial, rather than public-spirited, objectives.
Indeed, rather than serving as categorical legal “immunities” or “trumps,” modern free-speech rights often simply force the government to show a sufficient justification for abridgments of speech.312 “Rights are not general trumps against appeals to the common good or anything else,” Richard Pildes explains about modern American law.313 “[I]nstead,” he writes, “they are better understood as channeling the kinds of reasons government can invoke when it acts in certain arenas.”314 A ban on all fires in public, for instance, would trigger a lower degree of judicial scrutiny than a ban on flag burning, even though both would effectively ban flag burning.315 And in either scenario, the government would have a chance to show that the law is sufficiently tailored to serve sufficiently important governmental interests. Modern doctrine, in other words, still accommodates certain claims to the public good.316
But certain claims only. The Court has staunchly resisted the notion, for instance, that claims to the public good might factor into the threshold decision of how closely courts should scrutinize speech restrictions. “The whole point of the First Amendment,” the Court recently declared, “is to afford individuals protection against [speech] infringements” justified by “a generalized conception of the public good.”317 Rather, the Court has generally relegated the public-good analysis to the second stage of its analysis, thus putting the burden on the government to show the necessity of speech regulations and giving judges responsibility for ensuring, in the case of content-based regulations, that the proffered governmental interests are “compelling.” The public good can still override the speech right, but only rarely.318
This approach departs from history in two ways: First, it waters down what was originally absolute protection for well-intentioned statements of one’s views—a category of speech over which the Founders often said that the government simply had no power (except to regulate statements that violated natural law). Second, beyond this category, modern doctrine inverts the Founding Era understanding of freedom of speech as a natural right by putting the onus on the government to demonstrate a “compelling” justification for speech restrictions and by making judges the arbiters of what interests are compelling. Historically, it was up to legislators to assess which restrictions of speech would best serve the common good, with very little room for judicial oversight. Speech doctrine has thus followed a familiar pattern across an array of constitutional rights in the twentieth century: a vast expansion in the scope of rights coupled with a notable decrease in the afforded level of protection.319
Still, history offers at least some support for our non-absolutist approach to expressive freedom. Given the absence of any explicit textualist basis for a tiers-of-scrutiny approach, speech law is open to criticism by those who view rights as absolutes. The First Amendment’s opening declaration that “Congress shall make no law,” Justice Black famously insisted, does not invite judges to balance its protections against countervailing social interests.320 Yet if Black had read the text of the First Amendment in a historically informed way, he might have been more sympathetic to the tiers-of-scrutiny approach that his colleagues on the Supreme Court were beginning to adopt. After all, beyond their protection for a narrow set of customary legal rights, the Speech and Press Clauses simply recognized the natural right of expressive freedom, and natural rights were always implicitly qualified by legislative authority to promote the public good.
On this view, modern doctrine is valid so long as it tries to confine the processes of democracy to a good-faith pursuit of the public good—a goal that aligns with a democracy-reinforcing account of judicial review321—or, perhaps, so long as it confines policy outcomes to those that comport with the public good. (The proper level of generality to use in making these decisions is unclear.) As noted above,322 for instance, one could defend the tiers-of-scrutiny approach as a way of teasing out whether the government was restricting speech for public-spirited reasons or was simply trying to insulate itself from criticism. Or one might take the view that content-neutral regulations of speech are, on the whole, conducive to the public good, whereas content-based restrictions erode the benefits of an open speech marketplace.323 But on either view, modern interpreters must make our own assessments of which doctrines best fulfill these objectives.
In giving doctrinal precision to underdeterminate constitutional provisions, Jack Balkin explains, “we are permitted, even encouraged, to favor some [historical] opinions over others—even minority opinions in their day—and render judgments on the past.”324 In other words, although the history of speech and press freedoms might settle the meanings of the Speech and Press Clauses, we can learn from the mistakes of history in deciding how to apply those provisions today. Founding Era support for punishing sedition and blasphemy, for instance, would not prevent us from making our own determination about the consistency of these laws with the public good. Consequently, although the constitutional reach of governmental power over speech is certainly far different now than it was at the Founding, modern speech law could nonetheless have deeper historical roots, or more feasible historical justifications, than scholars often realize.
Rather than justifying modern rules in this way, however, the Supreme Court routinely claims to be shackled by history. Writing for the Court, Justice Scalia once insisted that the freedom of speech “is the very product of an interest balancing by the people,” leaving no room for governmental officials, including judges, to assess whether restrictions of speech promote the public good.325 In a similar vein, the Court recently rejected as “startling and dangerous” an approach to the First Amendment that would allow judges to identify “low-value” speech based on its utility.326 Instead, it asserted, “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”327 And just two terms ago, the Court seemed to treat the distinction between content-based and content-neutral restrictions as baked into the First Amendment.328
This Article has nothing to say about whether the rule against content-based regulations advances the public good, or whether confining low-value speech to traditional categories is a good idea. Those are empirical and value-based inquiries that have little to do with the Founding Era. But the history of speech and press freedoms overwhelmingly disproves the Supreme Court’s insistence that modern doctrines inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.
As a natural right, expression was originally subject to regulations that furthered the public good, leading to vibrant and long-running constitutional debates about expressive freedom. Nearly everyone who spoke on the issue agreed that well-intentioned statements of one’s thoughts were constitutionally protected. A few people thought that any governmental efforts to suppress political speech caused more harm than good. But for most, deliberate efforts to mislead the public were a different matter entirely and were deserving of punishment. In sum, opinions were wide-ranging, with arguments cast at different levels of generality. It bears emphasis that, on the whole, natural rights provided only a framework for argument—not a set of determinate legal rights.
The pliability of natural rights thus fostered a dynamic constitutional culture at the Founding. Natural liberty could be restrained, as William Blackstone put it, only when “necessary and expedient for the general advantage of the public.”329 Whenever natural liberty “is, by the laws of the state, further restrained than is necessary and expedient for the general advantage,” St. George Tucker declared in 1796, “a state of civil slavery commences immediately.”330 Steeped in this tradition, the Founders virulently contested the scope of all sorts of governmental powers—including the capacity to regulate expression—from the standpoint of policy, all the while casting their arguments in terms of an unchanging original bargain.
Recognizing the contested relationship between natural rights and legal rules at the Founding also has implications that resonate beyond the context of expressive freedom. Scholars often read constitutional phrases like “freedom of speech,” “unreasonable searches and seizures,” and “cruel and unusual punishments” as, in the words of Jack Balkin, “abstract and vague rights provisions.”331 Indeed, the presence of several open-textured provisions in the Bill of Rights seems to reinforce that the Founders often preferred general constitutional standards over specific constitutional rules.332 This Article, however, joins other recent scholarship suggesting that many Founding Era legal elites saw none of these rules as being abstract or vague. Rather, in their minds, these provisions simply reaffirmed longstanding features of Anglo-American law.
In the Fourth Amendment context, for instance, Laura Donohue has shown that Founding Era jurists viewed the ban on “unreasonable” searches and seizures as a simple reference to customary legal rules. “[A]t the Founding,” she explains, “there was no such thing as a ‘standard of reasonableness,’ such as has marked the Fourth Amendment discourse since the 1967 case of Katz v. United States.”333 Rather, Donohue uncovers, unreasonableness meant “‘against reason,’ which translated into ‘against the reason of the common law.’”334
Along similar lines, John Stinneford persuasively argues that, far from stating a “vague moral command,” the Eighth Amendment rule against “cruel and unusual” punishments actually called for a careful study of the common law.335 “[T]he best way to discern whether a government practice comported with principles of justice,” Stinneford writes, “was to determine whether it was continuously employed throughout the jurisdiction for a very long time, and thus enjoyed ‘long usage.’”336
In part, this Article reinforces these arguments. For many Founding Era legal elites, the First Amendment—far from being vague or abstract—imposed discrete legal commands recognized at common law. The First Amendment, in other words, was not designed or originally understood to provide a font of judicially crafted doctrines protecting expressive freedom.
At the same time, the history of the First Amendment complicates the idea that seemingly abstract constitutional rights actually carried more determinate common-law meanings.337 Many Founders, as this Article demonstrates, forcefully rejected lawyerly assumptions about constitutional interpretation. In this way, the Founders’ virulent contest over the legal implications of expressive freedom muddies the historical accounts offered by Donohue and Stinneford. If Republicans like George Hay were right that answering “a great constitutional question . . . depends, not on cases and precedents furnished by books, but on principles whose origin is to be traced in the law of nature,”338 that observation resonated far beyond the topic of expressive freedom.339
A scholarly focus on the indeterminacy of the original First Amendment may thus seem deserved. That emphasis, however, misses a crucial point. As concepts, speech and press freedoms were relatively well defined, even though written in a different language. And perhaps, with a hint of irony for those who seek constitutional stability in original meaning, this lost history reveals our modern dilemma: the proper scope of expressive freedom is left for us to determine.