How America's Constitution Affirmed Freedom of Speech Even Before the First Amendment

• Author: Akhil Reed Amar
• Position: Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law at both Yale College and Yale Law School
• Pages: 503-515

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HOW AMERICA’S CONSTITUTION AFFIRMED FREEDOM OF SPEECH EVEN BEFORE THE FIRST AMENDMENT

AKHIL REED AMAR^[_1]

In this essay, I hope to say a little something about both constitutional substance and constitutional method.

Substantively, I shall try to bring into view a heretofore hidden argument in support of the constitutional right of Americans to engage in a robust, wide-open, virtually uncensored conversation about government and society—a conversation in which participants may let fly scathing criticisms (and tart defenses, for that matter) of the status quo. Methodologically, I hope to show how this hidden argument travels through a recognizable version of standard originalism, but with some interesting twists.

I. STANDARD “PROOFS” OF FREEDOM OF EXPRESSION

Let us begin by reviewing several standard legal arguments in support of a robust right of free expression. As Professor Philip Bobbitt has shown, American lawyers and judges assess constitutional propositions by deploying certain well-established “modalities” of legal argument and analysis.¹Text, history, structure, and precedent—these are some of the basic tools in the constitutional lawyer’s kit. Lawyers use these modalities to evaluate the legal strength of various claims made about constitutional meaning.

Take judicial precedent, the foundation of what Bobbitt labels the “doctrinal” modality. Doctrine provides strong support for a constitutional right to criticize government policy, even when such criticism includes extreme invective and strays from factual accuracy. This right lies at the heart of one of the most celebrated Supreme Court cases of the last century, New York Times Co. v. Sullivan.²In ringing language, the

Copyright © 2010, Akhil Reed Amar

[_1] Akhil Reed Amar is the Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law at both Yale College and Yale Law School. This essay derives from the John E. Sullivan Lecture delivered at Capital University Law School on April 3, 2009. Special thanks to Lindsey Worth for her superb analytic and editorial suggestions.

¹See generally PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION

(1982).

²376 U.S. 254 (1964).

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Sullivan Court proclaimed that our nation has a “profound . . . commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”³According to Sullivan, a citizen criticizing government officials may never be criminally punished or held liable in a civil suit merely because that citizen’s denunciations contained careless falsehoods.⁴

Coming closer to home, consider the Supreme Court case that Professor Susan Gilles discussed in some detail, Brandenburg v. Ohio,⁵a

case that turned forty years old this year and that arose in Ohio.⁶In

Brandenburg, the Court made clear that even citizen speech publicly advocating illegal violence merits a strong measure of constitutional protection and cannot ordinarily be prohibited “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”⁷

Doctrinal protection for robust free expression—especially free expression of political opinions—is thus rock-solid today. But if only doctrine supported this right, we would be left with a puzzle. Before the 1920s, the Supreme Court had never invoked a constitutional right of free expression to invalidate a state or federal law.⁸On the contrary, several notable Court cases in the early twentieth century upheld sweeping forms of governmental censorship and suppression of citizen expression.⁹(One of these cases, Whitney v. California,¹⁰was not explicitly overruled until

³Id. at 270.

⁴See id. at 279–80 (holding that public officials must prove actual malice to recover damages for a defamatory falsehood relating to official conduct).

⁵395 U.S. 444 (1969).

⁶The case turned forty years old in 2009, the year this lecture and Professor Susan Gilles’s commentary were presented at Capital University Law School. Events giving rise to the Brandenburg suit took place at a farm in Hamilton County, Ohio. Id. at 445.

⁷Id. at 447.

⁸The rights of free expression first began to prevail in Fiske v. Kansas, 274 U.S. 380 (1927), Stromberg v. California, 283 U.S. 359 (1931), and Near v. Minnesota, 283 U.S.697 (1931). In retrospect, two other cases from the 1920s may also be seen as victories for free expression. See Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925).

⁹See, e.g., Whitney v. California, 274 U.S. 357 (1927); United States v. Schenck, 249 U.S. 47 (1919); United States v. Debs, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S.616 (1919); Patterson v. Colorado, 205 U.S. 454 (1907).

¹⁰274 U.S. 357 (1927).

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Brandenburg,¹¹which also undermined the logic of several other early cases.) If precedent were our only constitutional guide, we might be inclined to think that the federal constitutional right to free expression arose only in the twentieth century. We might even wonder about the correctness of Sullivan or Brandenburg to the extent that these landmark cases broke with prior case law.

However, when we turn from doctrine to consider other constitutional modalities, we find strong additional support for a robust constitutional right of political expression. For example, one modality directs our attention to the very structure of our system of government. And our system, based on popular sovereignty and free elections of public servants, strongly suggests that government officials—both at the state and federal level—lack the authority to prevent a robust public discourse critical of the government itself and/or existing social structures. In America, the sovereign people ultimately decide what policies we will support and which public servants we will elect. These elections would not be truly free if incumbents could entrench themselves against criticisms from challengers. The people would not truly be sovereign if our agents and servants—current government officials—could prevent us from speaking freely amongst ourselves on all matters of collective concern. From the perspective of constitutional structure, our public servants ultimately answer to us and have no authority to tell us what to say or what to think, politically.

Professor Vince Blasi has elegantly summarized this structural argument:

[F]ree speech is considered to be an essential ingredient of democratic self-government. In this view, ordinary citizens are the true governors; officials are merely their delegates. Citizens so invested with sovereign power have a duty to bring independent, informed judgment to their governing task. Persons under such a duty, the argument goes, must be free to explore the full range of ideas regarding government, even ideas that, were they to gain any measure of legitimation, could only undermine the commitments and projects of the current regime.¹²

¹¹Brandenburg, 395 U.S. at 449.

¹²Vincent Blasi, The Pessimist’s Case for Free Speech, in SESQUICENTENNIAL ESSAYS

OF THE FACULTY OF COLUMBIA LAW SCHOOL 26, 26 (2008).

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Note that on this more structural view, a robust right of free expression was indeed part of the Constitution long before Supreme Court majorities saw the light. To the extent that early Court case law sided with self-serving government agents attempting to entrench themselves in power and muzzle their masters, the sovereign citizenry, the Justices simply goofed.

Historical arguments—another standard modality in the constitutional kit—offer additional support for a robust constitutional right of free political expression. During debates over the drafting and ratification of the Constitution, a wide assortment of Federalists (including Roger Sherman, Oliver Ellsworth, Edmund Randolph, Alexander Hamilton, James Wilson, Charles Pinckney, Charles Cotesworth Pinckney, Noah Webster, Hugh Williamson, and Richard Dobbs Spaight) sought to reassure Anti-Federalist critics by insisting that the new federal government would have no generally applicable enumerated power to censor or license the press.¹³In the mid-1790s, James Madison, who himself had played a pivotal role in persuading the First Congress to endorse a constitutional amendment explicitly affirming “freedom of speech [and] of the press,” explained the deep principle underlying that amendment. Under the American system of popular sovereignty, “the censorial power is in the people over the Government, and not in the Government over the people.”¹⁴Several generations later, in response to aggressive governmental efforts to suppress abolitionist speech at both the state and federal levels, a new political party took shape, and in the presidential election of 1856, this party nominated John C. Fremont for President. The campaign slogan that year made it evident to all what this new Republican Party stood for: “Free Speech, Free Press, Free Men, Free Labor, Free Territory, and Fremont.”¹⁵After the Civil War, Republicans infused this free-speech vision into the Fourteenth Amendment, with Congressman after Congressman in the mid-1860s making clear on Capitol Hill that free political expression was one of the sacred “privileges” and “immunities” of citizens that should never be abridged by any government, state or federal.¹⁶

And let us not forget perhaps the most obvious constitutional argument of all: the text of the First Amendment does explicitly guarantee “the

¹³See AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 36

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