ARTICLE CONTENTS INTRODUCTION 249 I. STAKES AND IMPLICATIONS 257 A. Scholarly Contribution 257 B. Implications for Modern Doctrine 261 II. NATURAL RIGHTS AT THE FOUNDING 264 A. Natural Rights and Expressive Freedom 268 B. Inalienable Natural Rights and the Freedom of Opinion 280 C. Common-Law Rights and the Freedom of the Press 287 D. Nature and Law 290 III. EXPLICATING THE FIRST AMENDMENT 295 A. Enumerating Expressive Freedoms 295 B. Original Meanings 304 IV. USING HISTORY 313 CONCLUSION 318 INTRODUCTION
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. (10) Perhaps, 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 spealdng, 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...