What If the Founders Had Free Speech Wrong?

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(Bloomberg View) -- According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean?

A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.

It's a jarring claim. For decades, some influential readers, including Supreme Court Justice Hugo Black, have said that the First Amendment is an “absolute,” meaning that it forbids any restrictions on speech. Most others, including members of the current Supreme Court, insist that it doesn’t go quite that far. For example, government can regulate bribery, obscenity, perjury and false commercial advertisements – not to mention false cries of “fire!” in a crowded theater.

But almost everyone agrees that, with well-defined exceptions, freedom of speech is the general rule, and that it is the Supreme Court’s business is to protect it.

Campbell contends that the founding generation did not see things this way. In his account, theirs was an altogether different political world, and their concepts and principles were not at all like ours.

Campbell starts with the claim that much of the founders’ thinking was organized around the idea of “natural rights” -- rights that people could have without any government at all. Unlike the rights to a jury trial and to due process of law, the right to speak counted as a natural right.

But this didn’t mean that free speech was an absolute, or even that courts should protect it. Far more modestly, it meant that speech could be restricted only to protect the public good, and only when the people’s representatives voted in favor of the restriction.

For the most part, it was up to the legislature to decide whether speech needed to be regulated to protect the public good – understood, in James Madison’s terms, as the “safety and happiness of society.” As one writer explained, “Political liberty consists in a freedom of speech and action, so far as the laws of a community will permit, and no farther.”

Campbell offers two important qualifications. First, the founding generation opposed licensing of the press. In that way, they sought to forbid prior restraints on what members of the press could say (without necessarily forbidding subsequent punishment through criminal trials).

Second, they thought that (in Campbell’s words) “well-intentioned statements of one’s views were immune from regulation.” That means that so long as your speech was not meant to mislead or harm others, you were protected.

These qualifications would afford considerable protection to free speech -- but from the point of view of current law, not nearly enough. It would allow the government to enforce norms of civility – as with laws punishing blasphemy and profanity. It would allow punishment of falsehoods – as through expansive use of libel law to extract big damage awards from newspapers and broadcasters (as favored by President Donald Trump). It would also allow the government to punish efforts to deceive others (and deception is a pretty large category).

Campbell illustrates these points by noting that in the founding period, there was vigorous debate about the Sedition Act of 1798, under which people could be fined or imprisoned for writing, printing, uttering or publishing “any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States.”

From the standpoint of law in the 21st century, that’s plainly unconstitutional. But in the founding era, most people seemed to think that it was fine. One commentator insisted 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.”

Campbell’s research raises serious questions for “originalists” – those who believe, with Justices Clarence Thomas and Neil Gorsuch, that the meaning of the Constitution is settled by the original understanding of its terms. Do we really want to go back to the 18th-century view of freedom of speech?

At the same time, engagement with the historical materials raises hard questions for free-speech enthusiasts. Campbell contends that on the original understanding, Citizens United (the Supreme Court’s decision protecting the right of corporations to spend money on political campaigns) “would likely have to go.” His analysis also suggests that the First Amendment was probably not meant to protect hate speech, flag-burning or efforts to promote terrorism.

On these issues, it makes sense to grapple with 18th-century understandings, and to do so with humility and respect. Campbell’s elaboration of those understandings shows that in expanding protection of freedom of speech, the United States has made a ton of progress – but that in some areas, we may have lost a sense of balance along the way.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “#Republic: Divided Democracy in the Age of Social Media” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

For more columns from Bloomberg View, visit http://www.bloomberg.com/view.

©2017 Bloomberg L.P.

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