Freedom of Speech and of the Press

Arguing that the original meaning of the Clause at the time of the founding “put juries primarily in charge of administering governmental limitations of expression” but that Jeffersonian Republicans recast the Clause as a bar on “any [federal] authority to regulate speech or the press” during the debate over the Sedition Act of 1798.

Arguing that the Jeffersonian Republican’s arguments about the Clause in opposition to the Sedition Act of 1798 have become the meaning of the Clause through the theory of liquidation, whereby ambiguous original meaning of a constitutional clause is fixed or settled to a more refined meaning through an emerging consensus on one of the possible meanings.

Arguing that this Clause is grounded in the Founders’ natural rights understanding and that the Clause’s original meaning included explicitly a prohibition on press licensing, as well as an immunity from government regulation for “well-intentioned statements of one’s views.”

Arguing that “the founders thought that the First Amendment required Congress to restrict speech and the press only in promotion of the public good, while also guaranteeing more specific legal rules that had long protected expressive freedom.”

Reviewing the history and origin of the First Amendment’s protections of speech, the press, assembly, and petition, with a significant focus on George Mason’s Master Draft of the Bill of Rights, in order to argue that the goal of the Freedom of Speech Clause is “to advance Democratic self-governance” and the goal of the Freedom of the Press is to permit the press to serve as a “bulwark of liberty” against despotic governments.

Arguing that the Clause’s press protection includes a protection for author anonymity, except for the common law exceptions of perjury, defamation, obscenity, etc.

Arguing that the common view of “the press” as particular institutions is inconsistent with the Clause’s original meaning and arguing instead that the Clause protects every citizen’s right to write and publish.

Arguing “that constitutional constraints on speech-based civil liability have deep roots, stretching back to the Framing era” and that the author “know[s] of no other source” from the Founding era “that took the contrary view.”

Arguing that symbolic expression is included within the original meaning of the First Amendment’s speech protections because Founding era law treated symbolic expression and verbal expression the same and because Founding era commentators like St. George Tucker argued that the First Amendment’s final language included a right to “publicly communicating symbolic expression, such as paintings, effigies, and processions.”

Discussing Founding era authorities, including Burke, Blackstone, James Wilson, The Federalist Papers, and the debate over the Sedition Act, in order to argue that the Freedom of the Press Clause was primarily to protect political speech from prior restraint by the government.

Reviewing the legislative history of the Press Clause, as well as the interpretations of it during the debate about the Sedition Act of 1789, in order to argue that the Press Clause had original significance independent of the Speech Clause, that the press was intended to be the primary source of restraining the government, and that the Clause protected the press much more broadly, not just by prohibiting prior restraint.

Reviewing Founding era interpretations, including the Committee of Detail, ratification debates, The Federalist Papers, early state constitutions, and the First Congress, in order to argue that the Speech and Press Clause was intended to “safeguard the free discussion of public characters and measures to the end that capable and honorable men should be elected to public office and governmental power be scrupulously and responsibly exercised.”