FREE SPEECH ORIGINALISM.

• Author: Broker, Tyler

The "originalist" view of constitutional law is the view that in determining how constitutional language is applied, the judiciary-functions best when adhering, without significant deviation, from the "original" meaning of the language. (1) In the opinion of its adherents, originalism provides the only reasonable lens through which to interpret the Constitution's texts, given other alternative methods rely too much on the personal views of judges or impermissibly blur the line too far between unelected judge and legislator. This appeal towards greater objectivity is powerful, and it largely explains why originalism continues to maintain such strong support across the ideological spectrum, including among multiple members on the United States Supreme Court. (2)

When applying a strict originalist view to the First Amendment's free speech clause, the failure to strike down the Sedition Acts under the First Amendment and other categorical restrictions made during the pre-modern era, appear as convincing evidence of original intent for expansive and heavy-handed restraints on speech. (3) Consequently, the modern era of free speech jurisprudence, beginning with Justice Oliver Wendell Holmes' dissent in Abrams v. United States, (4) appears to break with original intent because of the era's expansive view of protection. (5)

This article will break with this conventional wisdom by drawing upon a common variable between the pre-modern and modern era periods of free speech jurisprudence: an evidence-based, procedural test of the effects of speech. If viewed through the lens of this test, first established by the Founders, (6) the highly restrictive jurisprudence of the eighteenth and nineteenth centuries and the expanse of protections of the modern era become a progression compatible, and without significant deviation, from original constitutional intent. (7) Moreover, this article will demonstrate that if the evidence-based test was applied today in accordance with its original intent as a limiting principle on government authority, (8) the protection of speech would not only be broader than it currently exists, but significantly deeper as well.

From the beginning, the Founders established substantive and procedural protections to ensure that disfavored speech actually caused non-speculative harm. (9) The commitment to an evidence test is demonstrated by the swift political blowback and legal amending during and after the passage of the Sedition Act. (10) In what has been traditionally understood as expansions in free speech protections starting with Justice Holmes in more modern times are actually better understood as a consistent legal test applied to increasingly reliable information about the demonstrable effects of speech. (11) In other words, the gradual increase in free speech protections has been dependent upon increases in evidence and science, rather than changes in free speech policy, and this is precisely what the Founders intended. (12)

Part I examines the underlying theory of free speech in the founding era as well as documenting the struggle between the Founders over how such a theory was to be applied in American society. Part II traces the development of the evidence-based test during the Nineteenth Century "pre-modern" era. Part III details the struggle over the modern application of the evidence-based test beginning with Justice Holmes' dissent in Abrams. Part IV reveals how the modern struggle ultimately led to a subversion of evidence-based reasoning for categorical and value-based analysis. Part V outlines what an evidence-based test in the 21 (st) Century should look like, and how it may be satisfied.

1. ORIGINAL FREE SPEECH, IN THEORY AND PRACTICE

   When describing Founder intent behind the First Amendment, Benjamin Franklin acknowledged that few Founders had any "distinct Ideas of its Nature and Extent." (13) Therefore, it is not surprising that debate over the essence of the Amendment's free speech guarantee began as soon as some Founders proposed establishing limits. The first successful limit to the free speech clause passed by Congress was the Sedition Act of 1798. (14) The Sedition Act made it a crime to publish or speak out against the government of the United States, the Congress, or the president, "with the intent to bring them into contempt or disrepute." (15) The legislative and public dispute over the Sedition Act of 1798 encompassed every facet of the original free speech debate and pitted nearly every Founder against one another over the intent behind the free speech guarantee. (16) The debate surrounding the Act provides an understanding of the Founders' intent behind the First Amendment's free speech guarantee.

   The Founders' disagreement over the Sedition Act was influenced by each opposing political side's vision of the role of government and faith in the citizenry at large. (17) Many Federalists, including John Adams and Alexander Hamilton, believed government must be superior to the people, and that government censure against the effects of the people's expression was necessary to maintain such superiority. (18) During the legislative debates over the Sedition Act, Congressman Harrison Gray Otis led the Federalist view. (19) Otis argued the free speech guarantee came directly from English common law, meant only to protect citizens from prior restraint, and not intended to abolish the government's ability to restrict or prohibit the undesirable effects of speech. (20) To the Federalist, the Sedition Act was necessary to protect the government, and ultimately the people, from "false and malicious attacks" that threatened the stability of the country in a time of war. (21) At the end of the legislative debate, the Federalist view won the day, by a narrow, straight party vote, and on July 14, 1798, President John Adams signed the Sedition Acts into law. (22)

   In opposition to the Federalists, including Founders such as James Madison and Thomas Jefferson, were those who believed government was, in all ways, subservient to the will of the people, who, consequently, must possess the inherent right to speak without the threat of government interference. (23) In response to the Sedition Acts, Madison, the primary author of the Constitution, publicly condemned the arguments justifying its passage. (24) Writing to the Virginia Legislature, Madison stated, "[i]t would seem a mockery,... to say that no law should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made." (25) Moreover, according to Madison, the fundamental difference between the newly established American system, from the English one, was the latter's legal deference to "superior[]" monarchial rulers. (26) The Federalist approach justifying the Sedition Acts was anathema to Madison's view that, in the United States '"a greater freedom of animadversion' is essential because government officials are responsible to their constituents, who may quite properly bring them 'into contempt or disrepute' if they fail to live up to their trusts." (27) Ultimately, Madison argued, the Sedition Acts were unconstitutional because they undermined "the responsibility of public servants and public measures to the people and embraced the 'exploded doctrine that the administrators of the Government are the masters, and not the servants, of the people." (28)

   The dispute over the issues debated by Madison and the Federalists remains unsettled. (29) However, this article does not attempt to determine which interpretation best captures original intent. For one thing, as Benjamin Franklin and others acknowledged, it would be impossible to make such a determination given the open-ended framework behind the free speech clause's text. (30) Acknowledging a wide range of ambiguity however, does not preclude the struggle over the Sedition Acts from offering fundamental principles as a basis for a concrete, free speech legal doctrine.

   Regardless of whether one finds the Federalist or Madison's more Info-Libertarian interpretation (31) more convincing, two principles emerge from the Sedition Acts debate that apply to free speech legal doctrine. First, it has long been common knowledge to scholars that all forms of speech maintain some level of guaranteed protection from prior restraint. (32) Secondly, as the next section will demonstrate, any restriction that seeks to censor speech because of the danger it imposes to society must include an evidence-based test of the link between the speech and the danger asserted. (33) The reason only these two principles survive with any certainty, is that they were the only premises both sides of the debate generally agreed on. (34)

   1. Claiborne's Compromise

   During the formal debate in Congress, Thomas Claiborne of Virginia introduced an amendment to empower juries sitting on Sedition Acts cases to determine: (1) whether the speech in question was true, (2) was issued by malice to endanger the government, or (3) was merely an opinion. (35) In other words, in order to convict, juries used a requirement of falsity and of subjective malice as indicators of danger. (36) In fact, the first public challenge made to the Federalists over the Sedition Act was to prove the harms they were claiming to be defending against were in fact real. (37) Crucial to the original analysis is that the Claiborne amendment passed with the overwhelming support of Federalists in a 67-15 vote. (38) The Claiborne amendment was an evidence-based inquiry clearly intended to satisfy Republican objections, (39) yet those who voted for the Amendment, or accepted the Federalist view, understood that an evidence-based test significantly deepened the protection in most cases. (40) President Adams himself said of the proposed procedure during the Sedition Acts debate '"it would be safest to admit evidence to the jury of the truth of accusations, and if the jury found them...