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First Amendment

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights—a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

Bill of Rights

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton , gathered in Philadelphia to draft a new U.S. Constitution .

Antifederalists, led by the first governor of Virginia , Patrick Henry , opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for people’s individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists , promised a concession to the antifederalists—a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 – the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

First Amendment Text

The First Amendment text reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

Freedom of Speech

The First Amendment guarantees freedom of speech . Freedom of speech gives Americans the right to express themselves without having to worry about government interference. It’s the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm others—true incitement and/or threats—is also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

Freedom of the Press

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press . False or defamatory statements—called libel—aren’t protected under the First Amendment.

Freedom of Religion

The First Amendment, in guaranteeing freedom of religion , prohibits the government from establishing a “state” religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

Right to Assemble, Right to Petition

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

First Amendment Court Cases

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech &  Freedom of the Press :

Schenck v. United States , 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I .

The Schenck decision helped define limits of freedom of speech, creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistance as dangerous to national security.

New York Times Co. v. United States , 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman , Dwight D. Eisenhower , John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson , 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan .

The Supreme Court reversed a Texas court’s decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: “This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.”

Edwards v. South Carolina (1962): On March 2, 1961, 187 Black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly and freedom to petition of the students.

The Bill of Rights; White House . History of the First Amendment; The University of Tennessee, Knoxville. Schenck v. United States ; C-Span .

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Freedom of Speech

[ Editor’s Note: The following new entry by Jeffrey W. Howard replaces the former entry on this topic by the previous author. ]

Human beings have significant interests in communicating what they think to others, and in listening to what others have to say. These interests make it difficult to justify coercive restrictions on people’s communications, plausibly grounding a moral right to speak (and listen) to others that is properly protected by law. That there ought to be such legal protections for speech is uncontroversial among political and legal philosophers. But disagreement arises when we turn to the details. What are the interests or values that justify this presumption against restricting speech? And what, if anything, counts as an adequate justification for overcoming the presumption? This entry is chiefly concerned with exploring the philosophical literature on these questions.

The entry begins by distinguishing different ideas to which the term “freedom of speech” can refer. It then reviews the variety of concerns taken to justify freedom of speech. Next, the entry considers the proper limits of freedom of speech, cataloging different views on when and why restrictions on communication can be morally justified, and what considerations are relevant when evaluating restrictions. Finally, it considers the role of speech intermediaries in a philosophical analysis of freedom of speech, with special attention to internet platforms.

1. What is Freedom of Speech?

2.1 listener theories, 2.2 speaker theories, 2.3 democracy theories, 2.4 thinker theories, 2.5 toleration theories, 2.6 instrumental theories: political abuse and slippery slopes, 2.7 free speech skepticism, 3.1 absoluteness, coverage, and protection, 3.2 the limits of free speech: external constraints, 3.3 the limits of free speech: internal constraints, 3.4 proportionality: chilling effects and political abuse, 3.5 necessity: the counter-speech alternative, 4. the future of free speech theory: platform ethics, other internet resources, related entries.

In the philosophical literature, the terms “freedom of speech”, “free speech”, “freedom of expression”, and “freedom of communication” are mostly used equivalently. This entry will follow that convention, notwithstanding the fact that these formulations evoke subtly different phenomena. For example, it is widely understood that artistic expressions, such as dancing and painting, fall within the ambit of this freedom, even though they don’t straightforwardly seem to qualify as speech , which intuitively connotes some kind of linguistic utterance (see Tushnet, Chen, & Blocher 2017 for discussion). Still, they plainly qualify as communicative activity, conveying some kind of message, however vague or open to interpretation it may be.

Yet the extension of “free speech” is not fruitfully specified through conceptual analysis alone. The quest to distinguish speech from conduct, for the purpose of excluding the latter from protection, is notoriously thorny (Fish 1994: 106), despite some notable attempts (such as Greenawalt 1989: 58ff). As John Hart Ely writes concerning Vietnam War protesters who incinerated their draft cards, such activity is “100% action and 100% expression” (1975: 1495). It is only once we understand why we should care about free speech in the first place—the values it instantiates or serves—that we can evaluate whether a law banning the burning of draft cards (or whatever else) violates free speech. It is the task of a normative conception of free speech to offer an account of the values at stake, which in turn can illuminate the kinds of activities wherein those values are realized, and the kinds of restrictions that manifest hostility to those values. For example, if free speech is justified by the value of respecting citizens’ prerogative to hear many points of view and to make up their own minds, then banning the burning of draft cards to limit the views to which citizens will be exposed is manifestly incompatible with that purpose. If, in contrast, such activity is banned as part of a generally applied ordinance restricting fires in public, it would likely raise no free-speech concerns. (For a recent analysis of this issue, see Kramer 2021: 25ff).

Accordingly, the next section discusses different conceptions of free speech that arise in the philosophical literature, each oriented to some underlying moral or political value. Before turning to the discussion of those conceptions, some further preliminary distinctions will be useful.

First, we can distinguish between the morality of free speech and the law of free speech. In political philosophy, one standard approach is to theorize free speech as a requirement of morality, tracing the implications of such a theory for law and policy. Note that while this is the order of justification, it need not be the order of investigation; it is perfectly sensible to begin by studying an existing legal protection for speech (such as the First Amendment in the U.S.) and then asking what could justify such a protection (or something like it).

But of course morality and law can diverge. The most obvious way they can diverge is when the law is unjust. Existing legal protections for speech, embodied in the positive law of particular jurisdictions, may be misguided in various ways. In other words, a justified legal right to free speech, and the actual legal right to free speech in the positive law of a particular jurisdiction, can come apart. In some cases, positive legal rights might protect too little speech. For example, some jurisdictions’ speech laws make exceptions for blasphemy, such that criminalizing blasphemy does not breach the legal right to free speech within that legal system. But clearly one could argue that a justified legal right to free speech would not include any such exception. In other cases, positive legal rights might perhaps protect too much speech. Consider the fact that, as a matter of U.S. constitutional precedent, the First Amendment broadly protects speech that expresses or incites racial or religious hatred. Plainly we could agree that this is so as a matter of positive law while disagreeing about whether it ought to be so. (This is most straightforwardly true if we are legal positivists. These distinctions are muddied by moralistic theories of constitutional interpretation, which enjoin us to interpret positive legal rights in a constitutional text partly through the prism of our favorite normative political theory; see Dworkin 1996.)

Second, we can distinguish rights-based theories of free speech from non-rights-based theories. For many liberals, the legal right to free speech is justified by appealing to an underlying moral right to free speech, understood as a natural right held by all persons. (Some use the term human right equivalently—e.g., Alexander 2005—though the appropriate usage of that term is contested.) The operative notion of a moral right here is that of a claim-right (to invoke the influential analysis of Hohfeld 1917); it thereby correlates to moral duties held by others (paradigmatically, the state) to respect or protect the right. Such a right is natural in that it exerts normative force independently of whether anyone thinks it does, and regardless of whether it is codified into the law. A tyrannical state that imprisons dissidents acts unjustly, violating moral rights, even if there is no legal right to freedom of expression in its legal system.

For others, the underlying moral justification for free speech law need not come in the form of a natural moral right. For example, consequentialists might favor a legal right to free speech (on, e.g., welfare-maximizing grounds) without thinking that it tracks any underlying natural right. Or consider democratic theorists who have defended legal protections for free speech as central to democracy. Such theorists may think there is an underlying natural moral right to free speech, but they need not (especially if they hold an instrumental justification for democracy). Or consider deontologists who have argued that free speech functions as a kind of side-constraint on legitimate state action, requiring that the state always justify its decisions in a manner that respects citizens’ autonomy (Scanlon 1972). This theory does not cast free speech as a right, but rather as a principle that forbids the creation of laws that restrict speech on certain grounds. In the Hohfeldian analysis (Hohfeld 1917), such a principle may be understood as an immunity rather than a claim-right (Scanlon 2013: 402). Finally, some “minimalists” (to use a designation in Cohen 1993) favor legal protection for speech principally in response to government malice, corruption, and incompetence (see Schauer 1982; Epstein 1992; Leiter 2016). Such theorists need not recognize any fundamental moral right, either.

Third, among those who do ground free speech in a natural moral right, there is scope for disagreement about how tightly the law should mirror that right (as with any right; see Buchanan 2013). It is an open question what the precise legal codification of the moral right to free speech should involve. A justified legal right to freedom of speech may not mirror the precise contours of the natural moral right to freedom of speech. A raft of instrumental concerns enters the downstream analysis of what any justified legal right should look like; hence a defensible legal right to free speech may protect more speech (or indeed less speech) than the underlying moral right that justifies it. For example, even if the moral right to free speech does not protect so-called hate speech, such speech may still merit legal protection in the final analysis (say, because it would be too risky to entrust states with the power to limit those communications).

2. Justifying Free Speech

I will now examine several of the morally significant considerations taken to justify freedom of expression. Note that while many theorists have built whole conceptions of free speech out of a single interest or value alone, pluralism in this domain remains an option. It may well be that a plurality of interests serves to justify freedom of expression, properly understood (see, influentially, Emerson 1970 and Cohen 1993).

Suppose a state bans certain books on the grounds that it does not want us to hear the messages or arguments contained within them. Such censorship seems to involve some kind of insult or disrespect to citizens—treating us like children instead of adults who have a right to make up our own minds. This insight is fundamental in the free speech tradition. On this view, the state wrongs citizens by arrogating to itself the authority to decide what messages they ought to hear. That is so even if the state thinks that the speech will cause harm. As one author puts it,

the government may not suppress speech on the ground that the speech is likely to persuade people to do something that the government considers harmful. (Strauss 1991: 335)

Why are restrictions on persuasive speech objectionable? For some scholars, the relevant wrong here is a form of disrespect for citizens’ basic capacities (Dworkin 1996: 200; Nagel 2002: 44). For others, the wrong here inheres in a violation of the kind of relationship the state should have with its people: namely, that it should always act from a view of them as autonomous, and so entitled to make up their own minds (Scanlon 1972). It would simply be incompatible with a view of ourselves as autonomous—as authors of our own lives and choices—to grant the state the authority to pre-screen which opinions, arguments, and perspectives we should be allowed to think through, allowing us access only to those of which it approves.

This position is especially well-suited to justify some central doctrines of First Amendment jurisprudence. First, it justifies the claim that freedom of expression especially implicates the purposes with which the state acts. There are all sorts of legitimate reasons why the state might restrict speech (so-called “time, place, and manner” restrictions)—for example, noise curfews in residential neighborhoods, which do not raise serious free speech concerns. Yet when the state restricts speech with the purpose of manipulating the communicative environment and controlling the views to which citizens are exposed, free speech is directly affronted (Rubenfeld 2001; Alexander 2005; Kramer 2021). To be sure, purposes are not all that matter for free speech theory. For example, the chilling effects of otherwise justified speech regulations (discussed below) are seldom intended. But they undoubtedly matter.

Second, this view justifies the related doctrines of content neutrality and viewpoint neutrality (see G. Stone 1983 and 1987) . Content neutrality is violated when the state bans discussion of certain topics (“no discussion of abortion”), whereas viewpoint neutrality is violated when the state bans advocacy of certain views (“no pro-choice views may be expressed”). Both affront free speech, though viewpoint-discrimination is especially egregious and so even harder to justify. While listener autonomy theories are not the only theories that can ground these commitments, they are in a strong position to account for their plausibility. Note that while these doctrines are central to the American approach to free speech, they are less central to other states’ jurisprudence (see A. Stone 2017).

Third, this approach helps us see that free speech is potentially implicated whenever the state seeks to control our thoughts and the processes through which we form beliefs. Consider an attempt to ban Marx’s Capital . As Marx is deceased, he is probably not wronged through such censorship. But even if one held idiosyncratic views about posthumous rights, such that Marx were wronged, it would be curious to think this was the central objection to such censorship. Those with the gravest complaint would be the living adults who have the prerogative to read the book and make up their own minds about it. Indeed free speech may even be implicated if the state banned watching sunsets or playing video games on the grounds that is disapproved of the thoughts to which such experiences might give rise (Alexander 2005: 8–9; Kramer 2021: 22).

These arguments emphasize the noninstrumental imperative of respecting listener autonomy. But there is an instrumental version of the view. Our autonomy interests are not merely respected by free speech; they are promoted by an environment in which we learn what others have to say. Our interests in access to information is served by exposure to a wide range of viewpoints about both empirical and normative issues (Cohen 1993: 229), which help us reflect on what goals to choose and how best to pursue them. These informational interests are monumental. As Raz suggests, if we had to choose whether to express our own views on some question, or listen to the rest of humanity’s views on that question, we would choose the latter; it is our interest as listeners in the public good of a vibrant public discourse that, he thinks, centrally justifies free speech (1991).

Such an interest in acquiring justified beliefs, or in accessing truth, can be defended as part of a fully consequentialist political philosophy. J.S. Mill famously defends free speech instrumentally, appealing to its epistemic benefits in On Liberty . Mill believes that, given our fallibility, we should routinely keep an open mind as to whether a seemingly false view may actually be true, or at least contain some valuable grain of truth. And even where a proposition is manifestly false, there is value in allowing its expression so that we can better apprehend why we take it to be false (1859: chapter 2), enabled through discursive conflict (cf. Simpson 2021). Mill’s argument focuses especially on the benefits to audiences:

It is is not on the impassioned partisan, it is on the calmer and more disinterested bystander, that this collision of opinions works its salutary effect. (1859: chapter 2, p. 94)

These views are sometimes associated with the idea of a “marketplace of ideas”, whereby the open clash of views inevitably leads to the correct ones winning out in debate. Few in the contemporary literature holds such a strong teleological thesis about the consequences of unrestricted debate (e.g., see Brietzke 1997; cf. Volokh 2011). Much evidence from behavioral economics and social psychology, as well as insights about epistemic injustice from feminist epistemology, strongly suggest that human beings’ rational powers are seriously limited. Smug confidence in the marketplace of ideas belies this. Yet it is doubtful that Mill held such a strong teleological thesis (Gordon 1997). Mill’s point was not that unrestricted discussion necessarily leads people to acquire the truth. Rather, it is simply the best mechanism available for ascertaining the truth, relative to alternatives in which some arbiter declares what he sees as true and suppresses what he sees as false (see also Leiter 2016).

Note that Mill’s views on free speech in chapter 2 in On Liberty are not simply the application of the general liberty principle defended in chapter 1 of that work; his view is not that speech is anodyne and therefore seldom runs afoul of the harm principle. The reason a separate argument is necessary in chapter 2 is precisely that he is carving out a partial qualification of the harm principle for speech (on this issue see Jacobson 2000, Schauer 2011b, and Turner 2014). On Mill’s view, plenty of harmful speech should still be allowed. Imminently dangerous speech, where there is no time for discussion before harm eventuates, may be restricted; but where there is time for discussion, it must be allowed. Hence Mill’s famous example that vociferous criticism of corn dealers as

starvers of the poor…ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer. (1859: chapter 3, p. 100)

The point is not that such speech is harmless; it’s that the instrumental benefits of permitting its expressions—and exposing its falsehood through public argument—justify the (remaining) costs.

Many authors have unsurprisingly argued that free speech is justified by our interests as speakers . This family of arguments emphasizes the role of speech in the development and exercise of our personal autonomy—our capacity to be the reflective authors of our own lives (Baker 1989; Redish 1982; Rawls 2005). Here an emphasis on freedom of expression is apt; we have an “expressive interest” (Cohen 1993: 224) in declaring our views—about the good life, about justice, about our identity, and about other aspects of the truth as we see it.

Our interests in self-expression may not always depend on the availability of a willing audience; we may have interests simply in shouting from the rooftops to declare who we are and what we believe, regardless of who else hears us. Hence communications to oneself—for example, in a diary or journal—are plausibly protected from interference (Redish 1992: 30–1; Shiffrin 2014: 83, 93; Kramer 2021: 23).

Yet we also have distinctive interests in sharing what we think with others. Part of how we develop our conceptions of the good life, forming judgments about how to live, is precisely through talking through the matter with others. This “deliberative interest” in directly served through opportunities to tell others what we think, so that we can learn from their feedback (Cohen 1993). Such encounters also offer opportunities to persuade others to adopt our views, and indeed to learn through such discussions who else already shares our views (Raz 1991).

Speech also seems like a central way in which we develop our capacities. This, too, is central to J.S. Mill’s defense of free speech, enabling people to explore different perspectives and points of view (1859). Hence it seems that when children engage in speech, to figure out what they think and to use their imagination to try out different ways of being in the world, they are directly engaging this interest. That explains the intuition that children, and not just adults, merit at least some protection under a principle of freedom of speech.

Note that while it is common to refer to speaker autonomy , we could simply refer to speakers’ capacities. Some political liberals hold that an emphasis on autonomy is objectionably Kantian or otherwise perfectionist, valorizing autonomy as a comprehensive moral ideal in a manner that is inappropriate for a liberal state (Cohen 1993: 229; Quong 2011). For such theorists, an undue emphasis on autonomy is incompatible with ideals of liberal neutrality toward different comprehensive conceptions of the good life (though cf. Shiffrin 2014: 81).

If free speech is justified by the importance of our interests in expressing ourselves, this justifies negative duties to refrain from interfering with speakers without adequate justification. Just as with listener theories, a strong presumption against content-based restrictions, and especially against viewpoint discrimination, is a clear requirement of the view. For the state to restrict citizens’ speech on the grounds that it disfavors what they have to say would affront the equal freedom of citizens. Imagine the state were to disallow the expression of Muslim or Jewish views, but allow the expression of Christian views. This would plainly transgress the right to freedom of expression, by valuing certain speakers’ interests in expressing themselves over others.

Many arguments for the right to free speech center on its special significance for democracy (Cohen 1993; Heinze 2016: Heyman 2009; Sunstein 1993; Weinstein 2011; Post 1991, 2009, 2011). It is possible to defend free speech on the noninstrumental ground that it is necessary to respect agents as democratic citizens. To restrict citizens’ speech is to disrespect their status as free and equal moral agents, who have a moral right to debate and decide the law for themselves (Rawls 2005).

Alternatively (or additionally), one can defend free speech on the instrumental ground that free speech promotes democracy, or whatever values democracy is meant to serve. So, for example, suppose the purpose of democracy is the republican one of establishing a state of non-domination between relationally egalitarian citizens; free speech can be defended as promoting that relation (Whitten 2022; Bonotti & Seglow 2022). Or suppose that democracy is valuable because of its role in promoting just outcomes (Arneson 2009) or tending to track those outcomes in a manner than is publicly justifiable (Estlund 2008) or is otherwise epistemically valuable (Landemore 2013).

Perhaps free speech doesn’t merely respect or promote democracy; another framing is that it is constitutive of it (Meiklejohn 1948, 1960; Heinze 2016). As Rawls says: “to restrict or suppress free political speech…always implies at least a partial suspension of democracy” (2005: 254). On this view, to be committed to democracy just is , in part, to be committed to free speech. Deliberative democrats famously contend that voting merely punctuates a larger process defined by a commitment to open deliberation among free and equal citizens (Gutmann & Thompson 2008). Such an unrestricted discussion is marked not by considerations of instrumental rationality and market forces, but rather, as Habermas puts it, “the unforced force of the better argument” (1992 [1996: 37]). One crucial way in which free speech might be constitutive of democracy is if it serves as a legitimation condition . On this view, without a process of open public discourse, the outcomes of the democratic decision-making process lack legitimacy (Dworkin 2009, Brettschneider 2012: 75–78, Cohen 1997, and Heinze 2016).

Those who justify free speech on democratic grounds may view this as a special application of a more general insight. For example, Scanlon’s listener theory (discussed above) contends that the state must always respect its citizens as capable of making up their own minds (1972)—a position with clear democratic implications. Likewise, Baker is adamant that both free speech and democracy are justified by the same underlying value of autonomy (2009). And while Rawls sees the democratic role of free speech as worthy of emphasis, he is clear that free speech is one of several basic liberties that enable the development and exercise of our moral powers: our capacities for a sense of justice and for the rational pursuit a lifeplan (2005). In this way, many theorists see the continuity between free speech and our broader interests as moral agents as a virtue, not a drawback (e.g., Kendrick 2017).

Even so, some democracy theorists hold that democracy has a special role in a theory of free speech, such that political speech in particular merits special protection (for an overview, see Barendt 2005: 154ff). One consequence of such views is that contributions to public discourse on political questions merit greater protection under the law (Sunstein 1993; cf. Cohen 1993: 227; Alexander 2005: 137–8). For some scholars, this may reflect instrumental anxieties about the special danger that the state will restrict the political speech of opponents and dissenters. But for others, an emphasis on political speech seems to reflect a normative claim that such speech is genuinely of greater significance, meriting greater protection, than other kinds of speech.

While conventional in the free speech literature, it is artificial to separate out our interests as speakers, listeners, and democratic citizens. Communication, and the thinking that feeds into it and that it enables, invariably engages our interests and activities across all these capacities. This insight is central to Seana Shiffrin’s groundbreaking thinker-based theory of freedom of speech, which seeks to unify the range of considerations that have informed the traditional theories (2014). Like other theories (e.g., Scanlon 1978, Cohen 1993), Shiffrin’s theory is pluralist in the range of interests it appeals to. But it offers a unifying framework that explains why this range of interests merits protection together.

On Shiffrin’s view, freedom of speech is best understood as encompassing both freedom of communication and freedom of thought, which while logically distinct are mutually reinforcing and interdependent (Shiffrin 2014: 79). Shiffrin’s account involves several profound claims about the relation between communication and thought. A central contention is that “free speech is essential to the development, functioning, and operation of thinkers” (2014: 91). This is, in part, because we must often externalize our ideas to articulate them precisely and hold them at a distance where we can evaluate them (p. 89). It is also because we work out what we think largely by talking it through with others. Such communicative processes may be monological, but they are typically dialogical; speaker and listener interests are thereby mutually engaged in an ongoing manner that cannot be neatly disentangled, as ideas are ping-ponged back and forth. Moreover, such discussions may concern democratic politics—engaging our interests as democratic citizens—but of course they need not. Aesthetics, music, local sports, the existence of God—these all are encompassed (2014: 92–93). Pace prevailing democratic theories,

One’s thoughts about political affairs are intrinsically and ex ante no more and no less central to the human self than thoughts about one’s mortality or one’s friends. (Shiffrin 2014: 93)

The other central aspect of Shiffrin’s view appeals to the necessity of communication for successfully exercising our moral agency. Sincere communication enables us

to share needs, emotions, intentions, convictions, ambitions, desires, fantasies, disappointments, and judgments. Thereby, we are enabled to form and execute complex cooperative plans, to understand one another, to appreciate and negotiate around our differences. (2014: 1)

Without clear and precise communication of the sort that only speech can provide, we cannot cooperate to discharge our collective obligations. Nor can we exercise our normative powers (such as consenting, waiving, or promising). Our moral agency thus depends upon protected channels through which we can relay our sincere thoughts to one another. The central role of free speech is to protect those channels, by ensuring agents are free to share what they are thinking without fear of sanction.

The thinker-based view has wide-ranging normative implications. For example, by emphasizing the continuity of speech and thought (a connection also noted in Macklem 2006 and Gilmore 2011), Shiffrin’s view powerfully explains the First Amendment doctrine that compelled speech also constitutes a violation of freedom of expression. Traditional listener- and speaker-focused theories seemingly cannot explain what is fundamentally objectionable with forcing someone to declare a commitment to something, as with children compelled to pledge allegiance to the American flag ( West Virginia State Board of Education v. Barnette 1943). “What seems most troubling about the compelled pledge”, Shiffrin writes,

is that the motive behind the regulation, and its possible effect, is to interfere with the autonomous thought processes of the compelled speaker. (2014: 94)

Further, Shiffrin’s view explains why a concern for free speech does not merely correlate to negative duties not to interfere with expression; it also supports positive responsibilities on the part of the state to educate citizens, encouraging and supporting their development and exercise as thinking beings (2014: 107).

Consider briefly one final family of free speech theories, which appeal to the role of toleration or self-restraint. On one argument, freedom of speech is important because it develops our character as liberal citizens, helping us tame our illiberal impulses. The underlying idea of Lee Bollinger’s view is that liberalism is difficult; we recurrently face temptation to punish those who hold contrary views. Freedom of speech helps us to practice the general ethos of toleration in a manner than fortifies our liberal convictions (1986). Deeply offensive speech, like pro-Nazi speech, is protected precisely because toleration in these enormously difficult cases promotes “a general social ethic” of toleration more generally (1986: 248), thereby restraining unjust exercises of state power overall. This consequentialist argument treats the protection of offensive speech not as a tricky borderline case, but as “integral to the central functions of the principle of free speech” (1986: 133). It is precisely because tolerating evil speech involves “extraordinary self-restraint” (1986: 10) that it works its salutary effects on society generally.

The idea of self-restraint arises, too, in Matthew Kramer’s recent defense of free speech. Like listener theories, Kramer’s strongly deontological theory condemns censorship aimed at protecting audiences from exposure to misguided views. At the core of his theory is the thesis that the state’s paramount moral responsibility is to furnish the social conditions that serve the development and maintenance of citizens’ self-respect and respect for others. The achievement of such an ethically resilient citizenry, on Kramer’s view, has the effect of neutering the harmfulness of countless harmful communications. “Securely in a position of ethical strength”, the state “can treat the wares of pornographers and the maunderings of bigots as execrable chirps that are to be endured with contempt” (Kramer 2021: 147). In contrast, in a society where the state has failed to do its duty of inculcating a robust liberal-egalitarian ethos, the communication of illiberal creeds may well pose a substantial threat. Yet for the state then to react by banning such speech is

overweening because with them the system’s officials take control of communications that should have been defused (through the system’s fulfillment of its moral obligations) without prohibitory or preventative impositions. (2021: 147)

(One might agree with Kramer that this is so, but diverge by arguing that the state—having failed in its initial duty—ought to take measures to prevent the harms that flow from that failure.)

These theories are striking in that they assume that a chief task of free speech theory is to explain why harmful speech ought to be protected. This is in contrast to those who think that the chief task of free speech theory is to explain our interests in communicating with others, treating the further issue of whether (wrongfully) harmful communications should be protected as an open question, with different reasonable answers available (Kendrick 2017). In this way, toleration theories—alongside a lot of philosophical work on free speech—seem designed to vindicate the demanding American legal position on free speech, one unshared by virtually all other liberal democracies.

One final family of arguments for free speech appeals to the danger of granting the state powers it may abuse. On this view, we protect free speech chiefly because if we didn’t, it would be far easier for the state to silence its political opponents and enact unjust policies. On this view, a state with censorial powers is likely to abuse them. As Richard Epstein notes, focusing on the American case,

the entire structure of federalism, divided government, and the system of checks and balances at the federal level shows that the theme of distrust has worked itself into the warp and woof of our constitutional structure.

“The protection of speech”, he writes, “…should be read in light of these political concerns” (Epstein 1992: 49).

This view is not merely a restatement of the democracy theory; it does not affirm free speech as an element of valuable self-governance. Nor does it reduce to the uncontroversial thought that citizens need freedom of speech to check the behavior of fallible government agents (Blasi 1977). One need not imagine human beings to be particularly sinister to insist (as democracy theorists do) that the decisions of those entrusted with great power be subject to public discussion and scrutiny. The argument under consideration here is more pessimistic about human nature. It is an argument about the slippery slope that we create even when enacting (otherwise justified) speech restrictions; we set an unacceptable precedent for future conduct by the state (see Schauer 1985). While this argument is theoretical, there is clearly historical evidence for it, as in the manifold cases in which bans on dangerous sedition were used to suppress legitimate war protest. (For a sweeping canonical study of the uses and abuses of speech regulations during wartime, with a focus on U.S. history, see G. Stone 2004.)

These instrumental concerns could potentially justify the legal protection for free speech. But they do not to attempt to justify why we should care about free speech as a positive moral ideal (Shiffrin 2014: 83n); they are, in Cohen’s helpful terminology, “minimalist” rather than “maximalist” (Cohen 1993: 210). Accordingly, they cannot explain why free speech is something that even the most trustworthy, morally competent administrations, with little risk of corruption or degeneration, ought to respect. Of course, minimalists will deny that accounting for speech’s positive value is a requirement of a theory of free speech, and that critiquing them for this omission begs the question.

Pluralists may see instrumental concerns as valuably supplementing or qualifying noninstrumental views. For example, instrumental concerns may play a role in justifying deviations between the moral right to free communication, on the one hand, and a properly specified legal right to free communication, on the other. Suppose that there is no moral right to engage in certain forms of harmful expression (such as hate speech), and that there is in fact a moral duty to refrain from such expression. Even so, it does not follow automatically that such a right ought to be legally enforced. Concerns about the dangers of granting the state such power plausibly militate against the enforcement of at least some of our communicative duties—at least in those jurisdictions that lack robust and competently administered liberal-democratic safeguards.

This entry has canvassed a range of views about what justifies freedom of expression, with particular attention to theories that conceive free speech as a natural moral right. Clearly, the proponents of such views believe that they succeed in this justificatory effort. But others dissent, doubting that the case for a bona fide moral right to free speech comes through. Let us briefly note the nature of this challenge from free speech skeptics , exploring a prominent line of reply.

The challenge from skeptics is generally understood as that of showing that free speech is a special right . As Leslie Kendrick notes,

the term “special right” generally requires that a special right be entirely distinct from other rights and activities and that it receive a very high degree of protection. (2017: 90)

(Note that this usage is not to be confused from the alternative usage of “special right”, referring to conditional rights arising out of particular relationships; see Hart 1955.)

Take each aspect in turn. First, to vindicate free speech as a special right, it must serve some distinctive value or interest (Schauer 2015). Suppose free speech were just an implication of a general principle not to interfere in people’s liberty without justification. As Joel Feinberg puts it, “Liberty should be the norm; coercion always needs some special justification” (1984: 9). In such a case, then while there still might be contingent, historical reasons to single speech out in law as worthy of protection (Alexander 2005: 186), such reasons would not track anything especially distinctive about speech as an underlying moral matter. Second, to count as a special right, free speech must be robust in what it protects, such that only a compelling justification can override it (Dworkin 2013: 131). This captures the conviction, prominent among American constitutional theorists, that “any robust free speech principle must protect at least some harmful speech despite the harm it may cause” (Schauer 2011b: 81; see also Schauer 1982).

If the task of justifying a moral right to free speech requires surmounting both hurdles, it is a tall order. Skeptics about a special right to free speech doubt that the order can be met, and so deny that a natural moral right to freedom of expression can be justified (Schauer 2015; Alexander & Horton 1983; Alexander 2005; Husak 1985). But these theorists may be demanding too much (Kendrick 2017). Start with the claim that free speech must be distinctive. We can accept that free speech be more than simply one implication of a general presumption of liberty. But need it be wholly distinctive? Consider the thesis that free speech is justified by our autonomy interests—interests that justify other rights such as freedom of religion and association. Is it a problem if free speech is justified by interests that are continuous with, or overlap with, interests that justify other rights? Pace the free speech skeptics, maybe not. So long as such claims deserve special recognition, and are worth distinguishing by name, this may be enough (Kendrick 2017: 101). Many of the views canvassed above share normative bases with other important rights. For example, Rawls is clear that he thinks all the basic liberties constitute

essential social conditions for the adequate development and full exercise of the two powers of moral personality over a complete life. (Rawls 2005: 293)

The debate, then, is whether such a shared basis is a theoretical virtue (or at least theoretically unproblematic) or whether it is a theoretical vice, as the skeptics avow.

As for the claim that free speech must be robust, protecting harmful speech, “it is not necessary for a free speech right to protect harmful speech in order for it to be called a free speech right” (Kendrick 2017: 102). We do not tend to think that religious liberty must protect harmful religious activities for it to count as a special right. So it would be strange to insist that the right to free speech must meet this burden to count as a special right. Most of the theorists mentioned above take themselves to be offering views that protect quite a lot of harmful speech. Yet we can question whether this feature is a necessary component of their views, or whether we could imagine variations without this result.

3. Justifying Speech Restrictions

When, and why, can restrictions on speech be justified? It is common in public debate on free speech to hear the provocative claim that free speech is absolute . But the plausibility of such a claim depends on what is exactly meant by it. If understood to mean that no communications between humans can ever be restricted, such a view is held by no one in the philosophical debate. When I threaten to kill you unless you hand me your money; when I offer to bribe the security guard to let me access the bank vault; when I disclose insider information that the company in which you’re heavily invested is about to go bust; when I defame you by falsely posting online that you’re a child abuser; when I endanger you by labeling a drug as safe despite its potentially fatal side-effects; when I reveal your whereabouts to assist a murderer intent on killing you—across all these cases, communications may be uncontroversially restricted. But there are different views as to why.

To help organize such views, consider a set of distinctions influentially defended by Schauer (from 1982 onward). The first category involves uncovered speech : speech that does not even presumptively fall within the scope of a principle of free expression. Many of the speech-acts just canvassed, such as the speech involved in making a threat or insider training, plausibly count as uncovered speech. As the U.S. Supreme Court has said of fighting words (e.g., insults calculated to provoke a street fight),

such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ( Chaplinsky v. New Hampshire 1942)

The general idea here is that some speech simply has negligible—and often no —value as free speech, in light of its utter disconnection from the values that justify free speech in the first place. (For discussion of so-called “low-value speech” in the U.S. context, see Sunstein 1989 and Lakier 2015.) Accordingly, when such low-value speech is harmful, it is particularly easy to justify its curtailment. Hence the Court’s view that “the prevention and punishment of [this speech] have never been thought to raise any Constitutional problem”. For legislation restricting such speech, the U.S. Supreme Court applies a “rational basis” test, which is very easy to meet, as it simply asks whether the law is rationally related to a legitimate state interest. (Note that it is widely held that it would still be impermissible to selectively ban low-value speech on a viewpoint-discriminatory basis—e.g., if a state only banned fighting words from left-wing activists while allowing them from right-wing activists.)

Schauer’s next category concerns speech that is covered but unprotected . This is speech that engages the values that underpin free speech; yet the countervailing harm of the speech justifies its restriction. In such cases, while there is real value in such expression as free speech, that value is outweighed by competing normative concerns (or even, as we will see below, on behalf of the very values that underpin free speech). In U.S. constitutional jurisprudence, this category encompasses those extremely rare cases in which restrictions on political speech pass the “strict scrutiny” test, whereby narrow restrictions on high-value speech can be justified due to the compelling state interests thereby served. Consider Holder v. Humanitarian Law Project 2010, in which the Court held that an NGO’s legal advice to a terrorist organization on how to pursue peaceful legal channels were legitimately criminalized under a counter-terrorism statute. While such speech had value as free speech (at least on one interpretation of this contested ruling), the imperative of counter-terrorism justified its restriction. (Arguably, commercial speech, while sometimes called low-value speech by scholars, falls into the covered but unprotected category. Under U.S. law, legislation restricting it receives “intermediate scrutiny” by courts—requiring restrictions to be narrowly drawn to advance a substantial government interest. Such a test suggests that commercial speech has bona fide free-speech value, making it harder to justify regulations on it than regulations on genuinely low-value speech like fighting words. It simply doesn’t have as much free-speech value as categories like political speech, religious speech, or press speech, all of which trigger the strict scrutiny test when restricted.)

As a philosophical matter, we can reasonably disagree about what speech qualifies as covered but unprotected (and need not treat the verdicts of the U.S. Supreme Court as philosophically decisive). For example, consider politically-inflected hate speech, which advances repugnant ideas about the inferior status of certain groups. One could concur that there is substantial free-speech value in such expression, just because it involves the sincere expression of views about central questions of politics and justice (however misguided the views doubtlessly are). Yet one could nevertheless hold that such speech should not be protected in virtue of the substantial harms to which it can lead. In such cases, the free-speech value is outweighed. Many scholars who defend the permissibility of legal restrictions on hate speech hold such a view (e.g., Parekh 2012; Waldron 2012). (More radically, one could hold that such speech’s value is corrupted by its evil, such that it qualifies as genuinely low-value; Howard 2019a.)

The final category of speech encompasses expression that is covered and protected . To declare that speech is protected just is to conclude that it is immune from restriction. A preponderance of human communications fall into this category. This does not mean that such speech can never be regulated ; content-neutral time, place, and manner regulations (e.g., prohibiting loud nighttime protests) can certainly be justified (G. Stone 1987). But such regulations must not be viewpoint discriminatory; they must apply even-handedly across all forms of protected speech.

Schauer’s taxonomy offers a useful organizing framework for how we should think about different forms of speech. Where does it leave the claim that free speech is absolute? The possibility of speech that is covered but unprotected suggests that free speech should sometimes be restricted on account of rival normative concerns. Of course, one could contend that such a category, while logically possible, is substantively an empty set; such a position would involve some kind of absoluteness about free speech (holding that where free-speech values are engaged by expression, no countervailing values can ever be weighty enough to override them). Such a position would be absolutist in a certain sense while granting the permissibility of restrictions on speech that do not engage the free-speech values. (For a recent critique of Schauer’s framework, arguing that governmental designation of some speech as low-value is incompatible with the very ideal of free speech, see Kramer 2021: 31.)

In what follows, this entry will focus on Schauer’s second category: speech that is covered by a free speech principle, but is nevertheless unprotected because of the harms it causes. How do we determine what speech falls into this category? How, in other words, do we determine the limits of free speech? Unsurprisingly, this is where most of the controversy lies.

Most legal systems that protect free speech recognize that the right has limits. Consider, for example, international human rights law, which emphatically protects the freedom of speech as a fundamental human right while also affirming specific restrictions on certain seriously harmful speech. Article 19 of the International Covenant of Civil and Political Rights declares that “[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds”—but then immediately notes that this right “carries with it special duties and responsibilities”. The subsequent ICCPR article proceeds to endorse legal restrictions on “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”, as well as speech constituting “propaganda for war” (ICCPR). While such restrictions would plainly be struck down as unconstitutional affronts to free speech in the U.S., this more restrictive approach prevails in most liberal democracies’ treatment of harmful speech.

Set aside the legal issue for now. How should we think about how to determine the limits of the moral right free speech? Those seeking to justify limits on speech tend to appeal to one of two strategies (Howard and Simpson forthcoming). The first strategy appeals to the importance of balancing free speech against other moral values when they come into conflict. This strategy involves external limits on free speech. (The next strategy, discussed below, invokes free speech itself, or the values that justify it, as limit-setting rationales; it thus involves internal limits on free speech.)

A balancing approach recognizes a moral conflict between unfettered communication and external values. Consider again the case of hate speech, understood as expression that attacks members of socially vulnerable groups as inferior or dangerous. On all of the theories canvassed above, there are grounds for thinking that restrictions on hate speech are prima facie in violation of the moral right to free speech. Banning hate speech to prevent people from hearing ideas that might incline them to bigotry plainly seems to disrespect listener autonomy. Further, even when speakers are expressing prejudiced views, they are still engaging their autonomous faculties. Certainly, they are expressing views on questions of public political concern, even false ones. And as thinkers they are engaged in the communication of sincere testimony to others. On many of the leading theories, the values underpinning free speech seem to be militate against bans on hate speech.

Even so, other values matter. Consider, for example, the value of upholding the equal dignity of all citizens. A central insight of critical race theory is that public expressions of white supremacy, for example, attack and undermine that equal dignity (Matsuda, Lawrence, Delgado, & Crenshaw 1993). On Jeremy Waldron’s view (2012), hate speech is best understood as a form of group defamation, launching spurious attacks on others’ reputations and thereby undermining their standing as respected equals in their own community (relatedly, see Beauharnais v. Illinois 1952).

Countries that ban hate speech, accordingly, are plausibly understood not as opposed to free speech, but as recognizing the importance that it be balanced when conflicting with other values. Such balancing can be understood in different ways. In European human rights law, for example, the relevant idea is that the right to free speech is balanced against other rights ; the relevant task, accordingly, is to specify what counts as a proportionate balance between these rights (see Alexy 2003; J. Greene 2021).

For others, the very idea of balancing rights undermines their deontic character. This alternative framing holds that the balancing occurs before we specify what rights are; on this view, we balance interests against each other, and only once we’ve undertaken that balancing do we proceed to define what our rights protect. As Scanlon puts it,

The only balancing is balancing of interests. Rights are not balanced, but are defined, or redefined, in the light of the balance of interests and of empirical facts about how these interests can best be protected. (2008: 78)

This balancing need not come in the form of some crude consequentialism; otherwise it would be acceptable to limit the rights of the few to secure trivial benefits for the many. On a contractualist moral theory such as Scanlon’s, the test is to assess the strength of any given individual’s reason to engage in (or access) the speech, against the strength of any given individual’s reason to oppose it.

Note that those who engage in balancing need not give up on the idea of viewpoint neutrality; they can accept that, as a general principle, the state should not restrict speech on the grounds that it disapproves of its message and dislikes that others will hear it. The point, instead, is that this commitment is defeasible; it is possible to be overridden.

One final comment is apt. Those who are keen to balance free speech against other values tend to be motivated by the concern that speech can cause harm, either directly or indirectly (on this distinction, see Schauer 1993). But to justify restrictions on speech, it is not sufficient (and perhaps not even necessary) to show that such speech imposes or risks imposing harm. The crucial point is that the speech is wrongful (or, perhaps, wrongfully harmful or risky) , breaching a moral duty that speakers owe to others. Yet very few in the free speech literature think that the mere offensiveness of speech is sufficient to justify restrictions on it. Even Joel Feinberg, who thinks offensiveness can sometimes be grounds for restricting conduct, makes a sweeping exception for

[e]xpressions of opinion, especially about matters of public policy, but also about matters of empirical fact, and about historical, scientific, theological, philosophical, political, and moral questions. (1985: 44)

And in many cases, offensive speech may be actively salutary, as when racists are offended by defenses of racial equality (Waldron 1987). Accordingly, despite how large it looms in public debate, discussion of offensive speech will not play a major role in the discussion here.

We saw that one way to justify limits on free speech is to balance it against other values. On that approach, free speech is externally constrained. A second approach, in contrast, is internally constrained. On this approach, the very values that justify free speech themselves determine its own limits. This is a revisionist approach to free speech since, unlike orthodox thinking, it contends that a commitment to free speech values can counterintuitively support the restriction of speech—a surprising inversion of traditional thinking on the topic (see Howard and Simpson forthcoming). This move—justifying restrictions on speech by appealing to the values that underpin free speech—is now prevalent in the philosophical literature (for an overview, see Barendt 2005: 1ff).

Consider, for example, the claim that free speech is justified by concerns of listener autonomy. On such a view, as we saw above, autonomous citizens have interests in exposure to a wide range of viewpoints, so that they can decide for themselves what to believe. But many have pointed out that this is not autonomous citizens’ only interest; they also have interests in not getting murdered by those incited by incendiary speakers (Amdur 1980). Likewise, insofar as being targeted by hate speech undermines the exercise of one’s autonomous capacities, appeal to the underlying value of autonomy could well support restrictions on such speech (Brison 1998; see also Brink 2001). What’s more, if our interests as listeners in acquiring accurate information is undermined by fraudulent information, then restrictions on such information could well be compatible with our status as autonomous; this was one of the insights that led Scanlon to complicate his theory of free speech (1978).

Or consider the theory that free speech is justified because of its role in enabling autonomous speakers to express themselves. But as Japa Pallikkathayil has argued, some speech can intimidate its audiences into staying silent (as with some hate speech), out of fear for what will happen if they speak up (Pallikkathayil 2020). In principle, then, restrictions on hate speech may serve to support the value of speaker expression, rather than undermine it (see also Langton 2018; Maitra 2009; Maitra & McGowan 2007; and Matsuda 1989: 2337). Indeed, among the most prominent claims in feminist critiques of pornography is precisely that it silences women—not merely through its (perlocutionary) effects in inspiring rape, but more insidiously through its (illocutionary) effects in altering the force of the word “no” (see MacKinnon 1984; Langton 1993; and West 204 [2022]; McGowan 2003 and 2019; cf. Kramer 2021, pp. 160ff).

Now consider democracy theories. On the one hand, democracy theorists are adamant that citizens should be free to discuss any proposals, even the destruction of democracy itself (e.g., Meiklejohn 1948: 65–66). On the other hand, it isn’t obvious why citizens’ duties as democratic citizens could not set a limit to their democratic speech rights (Howard 2019a). The Nazi propagandist Goebbels is said to have remarked:

This will always remain one of the best jokes of democracy, that it gave its deadly enemies the means by which it was destroyed. (as quoted in Fox & Nolte 1995: 1)

But it is not clear why this is necessarily so. Why should we insist on a conception of democracy that contains a self-destruct mechanism? Merely stipulating that democracy requires this is not enough (see A. Greene and Simpson 2017).

Finally, consider Shiffrin’s thinker-based theory. Shiffrin’s view is especially well-placed to explain why varieties of harmful communications are protected speech; what the theory values is the sincere transmission of veridical testimony, whereby speakers disclose what they genuinely believe to others, even if what they believe is wrongheaded and dangerous. Yet because the sincere testimony of thinkers is what qualifies some communication for protection, Shiffrin is adamant that lying falls outside the protective ambit of freedom of expression (2014) This, then, sets an internal limit on her own theory (even if she herself disfavors all lies’ outright prohibition for reasons of tolerance). The claim that lying falls outside the protective ambit of free speech is itself a recurrent suggestion in the literature (Strauss 1991: 355; Brown 2023). In an era of rampant disinformation, this internal limit is of substantial practical significance.

Suppose the moral right (or principle) of free speech is limited, as most think, such that not all communications fall within its protective ambit (either for external reasons, internal reasons, or both). Even so, it does not follow that laws banning such unprotected speech can be justified all-things-considered. Further moral tests must be passed before any particular policy restricting speech can be justified. This sub-section focuses on the requirement that speech restrictions be proportionate .

The idea that laws implicating fundamental rights must be proportionate is central in many jurisdictions’ constitutional law, as well as in the international law of human rights. As a representative example, consider the specification of proportionality offered by the Supreme Court of Canada:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair, or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question[…] Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance” ( R v. Oakes 1986).

It is this third element (often called “proportionality stricto sensu ”) on which we will concentrate here; this is the focused sense of proportionality that roughly tracks how the term is used in the philosophical literatures on defensive harm and war, as well as (with some relevant differences) criminal punishment. (The strict scrutiny and intermediate scrutiny tests of U.S. constitutional law are arguably variations of the proportionality test; but set aside this complication for now as it distracts from the core philosophical issues. For relevant legal discussion, see Tsesis 2020.)

Proportionality, in the strict sense, concerns the relation between the costs or harms imposed by some measure and the benefits that the measure is designed to secure. The organizing distinction in recent philosophical literature (albeit largely missing in the literature on free speech) is one between narrow proportionality and wide proportionality . While there are different ways to cut up the terrain between these terms, let us stipulatively define them as follows. An interference is narrowly proportionate just in case the intended target of the interference is liable to bear the costs of that interference. An interference is widely proportionate just in case the collateral costs that the interference unintentionally imposes on others can be justified. (This distinction largely follows the literature in just war theory and the ethics of defensive force; see McMahan 2009.) While the distinction is historically absent from free speech theory, it has powerful payoffs in helping to structure this chaotic debate (as argued in Howard 2019a).

So start with the idea that restrictions on communication must be narrowly proportionate . For a restriction to be narrowly proportionate, those whose communications are restricted must be liable to bear their costs, such that they are not wronged by their imposition. One standard way to be liable to bear certain costs is to have a moral duty to bear them (Tadros 2012). So, for example, if speakers have a moral duty to refrain from libel, hate speech, or some other form of harmful speech, they are liable to bear at least some costs involved in the enforcement of that duty. Those costs cannot be unlimited; a policy of executing hate speakers could not plausibly be justified. Typically, in both defensive and punitive contexts, wrongdoers’ liability is determined by their culpability, the severity of their wrong, or some combination of the two. While it is difficult to say in the abstract what the precise maximal cost ceiling is for any given restriction, as it depends hugely on the details, the point is simply that there is some ceiling above which a speech restriction (like any restriction) imposes unacceptably high costs, even on wrongdoers.

Second, for a speech restriction to be justified, we must also show that it would be widely proportionate . Suppose a speaker is liable to bear the costs of some policy restricting her communication, such that she is not wronged by its imposition. It may be that the collateral costs of such a policy would render it unacceptable. One set of costs is chilling effects , the “overdeterrence of benign conduct that occurs incidentally to a law’s legitimate purpose or scope” (Kendrick 2013: 1649). The core idea is that laws targeting unprotected, legitimately proscribed expression may nevertheless end up having a deleterious impact on protected expression. This is because laws are often vague, overbroad, and in any case are likely to be misapplied by fallible officials (Schauer 1978: 699).

Note that if a speech restriction produces chilling effects, it does not follow that the restriction should not exist at all. Rather, concern about chilling effects instead suggests that speech restrictions should be under-inclusive—restricting less speech than is actually harmful—in order to create “breathing space”, or “a buffer zone of strategic protection” (Schauer 1978: 710) for legitimate expression and so reduce unwanted self-censorship. For example, some have argued that even though speech can cause harm recklessly or negligently, we should insist on specific intent as the mens rea of speech crimes in order to reduce any chilling effects that could follow (Alexander 1995: 21–128; Schauer 1978: 707; cf. Kendrick 2013).

But chilling effects are not the only sort of collateral effects to which speech restrictions could lead. Earlier we noted the risk that states might abuse their censorial powers. This, too, could militate in favor of underinclusive speech restrictions. Or the implication could be more radical. Consider the problem that it is difficult to author restrictions on hate speech in a tightly specified way; the language involved is open-ended in a manner that enables states to exercise considerable judgment in deciding what speech-acts, in fact, count as violations (see Strossen 2018). Given the danger that the state will misuse or abuse these laws to punish legitimate speech, some might think this renders their enactment widely disproportionate. Indeed, even if the law were well-crafted and would be judiciously applied by current officials, the point is that those in the future may not be so trustworthy.

Those inclined to accept such a position might simply draw the conclusion that legislatures ought to refrain from enacting laws against hate speech. A more radical conclusion is that the legal right to free speech ought to be specified so that hate speech is constitutionally protected. In other words, we ought to give speakers a legal right to violate their moral duties, since enforcing those moral duties through law is simply too risky. By appealing to this logic, it is conceivable that the First Amendment position on hate speech could be justified all-things-considered—not because the underlying moral right to free speech protects hate speech, but because hate speech must be protected for instrumental reasons of preventing future abuses of power (Howard 2019a).

Suppose certain restrictions on harmful speech can be justified as proportionate, in both the narrow and wide senses. This is still not sufficient to justify them all-things-considered. Additionally, they must be justified as necessary . (Note that some conceptions of proportionality in human rights law encompass the necessity requirement, but this entry follows the prevailing philosophical convention by treating them as distinct.)

Why might restrictions on harmful speech be unnecessary? One of the standard claims in the free speech literature is that we should respond to harmful speech not by banning it, but by arguing back against it. Counter-speech—not censorship—is the appropriate solution. This line of reasoning is old. As John Milton put it in 1644: “Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” The insistence on counter-speech as the remedy for harmful speech is similarly found, as noted above, throughout chapter 2 of Mill’s On Liberty .

For many scholars, this line of reply is justified by the fact that they think the harmful speech in question is protected by the moral right to free speech. For such scholars, counter-speech is the right response because censorship is morally off the table. For other scholars, the recourse to counter-speech has a plausible distinct rationale (although it is seldom articulated): its possibility renders legal restrictions unnecessary. And because it is objectionable to use gratuitous coercion, legal restrictions are therefore impermissible (Howard 2019a). Such a view could plausibly justify Mill’s aforementioned analysis in the corn dealer example, whereby censorship is permissible but only when there’s no time for counter-speech—a view that is also endorsed by the U.S. Supreme Court in Brandenburg v. Ohio 395 U.S. 444 (1969).

Whether this argument succeeds depends upon a wide range of further assumptions—about the comparable effectiveness of counter-speech relative to law; about the burdens that counter-speech imposes on prospective counter-speakers. Supposing that the argument succeeds, it invites a range of further normative questions about the ethics of counter-speech. For example, it is important who has the duty to engage in counter-speech, who its intended audience is, and what specific forms the counter-speech ought to take—especially in order to maximize its persuasive effectiveness (Brettschneider 2012; Cepollaro, Lepoutre, & Simpson 2023; Howard 2021b; Lepoutre 2021; Badano & Nuti 2017). It is also important to ask questions about the moral limits of counter-speech. For example, insofar as publicly shaming wrongful speakers has become a prominent form of counter-speech, it is crucial to interrogate its permissibility (e.g., Billingham and Parr 2020).

This final section canvasses the young philosophical debate concerning freedom of speech on the internet. With some important exceptions (e.g., Barendt 2005: 451ff), this issue has only recently accelerated (for an excellent edited collection, see Brison & Gelber 2019). There are many normative questions to be asked about the moral rights and obligations of internet platforms. Here are three. First, do internet platforms have moral duties to respect the free speech of their users? Second, do internet platforms have moral duties to restrict (or at least refrain from amplifying) harmful speech posted by their users? And finally, if platforms do indeed have moral duties to restrict harmful speech, should those duties be legally enforced?

The reference to internet platforms , is a deliberate focus on large-scale social media platforms, through which people can discover and publicly share user-generated content. We set aside other entities such as search engines (Whitney & Simpson 2019), important though they are. That is simply because the central political controversies, on which philosophical input is most urgent, concern the large social-media platforms.

Consider the question of whether internet platforms have moral duties to respect the free speech of their users. One dominant view in the public discourse holds that the answer is no . On this view, platforms are private entities, and as such enjoy the prerogative to host whatever speech they like. This would arguably be a function of them having free speech rights themselves. Just as the free speech rights of the New York Times give it the authority to publish whatever op-eds it sees fit, the free speech rights of platforms give them the authority to exercise editorial or curatorial judgment about what speech to allow. On this view, if Facebook were to decide to become a Buddhist forum, amplifying the speech of Buddhist users and promoting Buddhist perspectives and ideas, and banning speech promoting other religions, it would be entirely within its moral (and thus proper legal) rights to do so. So, too, if it were to decide to become an atheist forum.

A radical alternative view holds that internet platforms constitute a public forum , a term of art from U.S. free speech jurisprudence used to designate spaces “designed for and dedicated to expressive activities” ( Southeastern Promotions Ltd., v. Conrad 1975). As Kramer has argued:

social-media platforms such as Facebook and Twitter and YouTube have become public fora. Although the companies that create and run those platforms are not morally obligated to sustain them in existence at all, the role of controlling a public forum morally obligates each such company to comply with the principle of freedom of expression while performing that role. No constraints that deviate from the kinds of neutrality required under that principle are morally legitimate. (Kramer 2021: 58–59)

On this demanding view, platforms’ duties to respect speech are (roughly) identical to the duties of states. Accordingly, if efforts by the state to restrict hate speech, pornography, and public health misinformation (for example) are objectionable affronts to free speech, so too are platforms’ content moderation rules for such content. A more moderate view does not hold that platforms are public forums as such, but holds that government channels or pages qualify as public forums (the claim at issue in Knight First Amendment Institute v. Trump (2019).)

Even if we deny that platforms constitute public forums, it is plausible that they engage in a governance function of some kind (Klonick 2018). As Jack Balkin has argued, the traditional model of free speech, which sees it as a relation between speakers and the state, is today plausibly supplanted by a triadic model, involving a more complex relation between speakers, governments, and intermediaries (2004, 2009, 2018, 2021). If platforms do indeed have some kind of governance function, it may well trigger responsibilities for transparency and accountability (as with new legislation such as the EU’s Digital Services Act and the UK’s Online Safety Act).

Second, consider the question of whether platforms have a duty to remove harmful content posted by users. Even those who regard them as public forums could agree that platforms may have a moral responsibility to remove illegal unprotected speech. Yet a dominant view in the public debate has historically defended platforms’ place as mere conduits for others’ speech. This is the current position under U.S. law (as with 47 U.S. Code §230), which broadly exempts platforms from liability for much illegal speech, such as defamation. On this view, we should view platforms as akin to bulletin boards: blame whoever posts wrongful content, but don’t hold the owner of the board responsible.

This view is under strain. Even under current U.S. law, platforms are liable for removing some content, such as child sexual abuse material and copyright infringements, suggesting that it is appropriate to demand some accountability for the wrongful content posted by others. An increasing body of philosophical work explores the idea that platforms are indeed morally responsible for removing extreme content. For example, some have argued that platforms have a special responsibility to prevent the radicalization that occurs on their networks, given the ways in which extreme content is amplified to susceptible users (Barnes 2022). Without engaging in moderation (i.e., removal) of harmful content, platforms are plausibly complicit with the wrongful harms perpetrated by users (Howard forthcoming).

Yet it remains an open question what a responsible content moderation policy ought to involve. Many are tempted by a juridical model, whereby platforms remove speech in accordance with clearly announced rules, with user appeals mechanisms in place for individual speech decisions to ensure they are correctly made (critiqued in Douek 2022b). Yet platforms have billions of users and remove millions of pieces of content per week. Accordingly, perfection is not possible. Moving quickly to remove harmful content during a crisis—e.g., Covid misinformation—will inevitably increase the number of false positives (i.e., legitimate speech taken down as collateral damage). It is plausible that the individualistic model of speech decisions adopted by courts is decidedly implausible to help us govern online content moderation; as noted in Douek 2021 and 2022a, what is needed is analysis of how the overall system should operate at scale, with a focus on achieving proportionality between benefits and costs. Alternatively, one might double down and insist that the juridical model is appropriate, given the normative significance of speech. And if it is infeasible for social-media companies to meet its demands given their size, then all the worse for social-media companies. On this view, it is they who must bend to meet the moral demands of free speech theory, not the other way around.

Substantial philosophical work needs to be done to deliver on this goal. The work is complicated by the fact that artificial intelligence (AI) is central to the processes of content moderation; human moderators, themselves subjected to terrible working conditions at long hours, work in conjunction with machine learning tools to identify and remove content that platforms have restricted. Yet AI systems notoriously are as biased as their training data. Further, their “black box” decisions are cryptic and cannot be easily understood. Given that countless speech decisions will necessarily be made without human involvement, it is right to ask whether it is reasonable to expect users to accept the deliverances of machines (e.g., see Vredenburgh 2022; Lazar forthcoming a). Note that machine intelligence is used not merely for content moderation, narrowly understood as the enforcement of rules about what speech is allowed. It is also deployed for the broader practice of content curation, determining what speech gets amplified — raising the question of what normative principles should govern such amplification; see Lazar forthcoming b).

Finally, there is the question of legal enforcement. Showing that platforms have the moral responsibility to engage in content moderation is necessary to justifying its codification into a legal responsibility. Yet it is not sufficient; one could accept that platforms have moral duties to moderate (some) harmful speech while also denying that those moral duties ought to be legally enforced. A strong, noninstrumental version of such a view would hold that while speakers have moral duties to refrain from wrongful speech, and platforms have duties not to platform or amplify it, the coercive enforcement of such duties would violate the moral right to freedom of expression. A more contingent, instrumental version of the view would hold that legal enforcement is not in principle impermissible; but in practice, it is simply too risky to grant the state the authority to enforce platforms’ and speakers’ moral duties, given the potential for abuse and overreach.

Liberals who champion the orthodox interpretation of the First Amendment, yet insist on robust content moderation, likely hold one or both of these views. Yet globally such views seem to be in the minority. Serious legislation is imminent that will subject social-media companies to burdensome regulation, in the form of such laws as the Digital Services Act in the European Union and the Online Safety Bill in the UK. Normatively evaluating such legislation is a pressing task. So, too, is the task of designing normative theories to guide the design of content moderation systems, and the wider governance of the digital public sphere. On both fronts, political philosophers should get back to work.

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• –––, 1993, Democracy and the Problem of Free Speech , New York: The Free Press.
• –––, 2017, #Republic: Divided Democracy in the Age of Social Media , Princeton, NJ: Princeton University Press.
• Tadros, Victor, 2012, “Duty and Liability”, Utilitas , 24(2): 259–277.
• Turner, Piers Norris, 2014, “‘Harm’ and Mill’s Harm Principle”, Ethics , 124(2): 299–326. doi:10.1086/673436
• Tushnet, Mark, Alan Chen, and Joseph Blocher, 2017, Free Speech beyond Words: The Surprising Reach of the First Amendment , New York: New York University Press.
• Volokh, Eugene, 2011, “In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection Responses”, Virginia Law Review , 97(3): 595–602.
• Vredenburgh, Kate, 2022, “The Right to Explanation”, Journal of Political Philosophy , 30(2): 209–229. doi:10.1111/jopp.12262
• Waldron, Jeremy, 1987, “Mill and the Value of Moral Distress”, Political Studies , 35(3): 410–423. doi:10.1111/j.1467-9248.1987.tb00197.x
• –––, 2012, The Harm in Hate Speech (The Oliver Wendell Holmes Lectures, 2009), Cambridge, MA: Harvard University Press.
• Weinstein, James, 2011, “Participatory Democracy as the Central Value of American Free Speech Doctrine”, Virginia Law Review , 97(3): 491–514.
• West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943).
• Whitten, Suzanne, 2022, A Republican Theory of Free Speech: Critical Civility , Cham: Palgrave Macmillan. doi:10.1007/978-3-030-78631-1
• Whitney, Heather M. and Robert Mark Simpson, 2019, “Search Engines and Free Speech Coverage”, in Free Speech in the Digital Age , Susan J. Brison and Katharine Gelber (eds), Oxford: Oxford University Press, 33–51 (ch. 2). doi:10.1093/oso/9780190883591.003.0003
• West, Caroline, 2004 [2022], “Pornography and Censorship”, The Stanford Encyclopedia of Philosophy (Winter 2022 edition), Edward N. Zalta and Uri Nodelman (eds.), URL = < https://plato.stanford.edu/archives/win2022/entries/pornography-censorship/ >.

How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• International Covenant on Civil and Political Rights (ICCPR) , adopted: 16 December 1966; Entry into force: 23 March 1976.
• Free Speech Debate
• Knight First Amendment Institute at Columbia University
• van Mill, David, “Freedom of Speech”, Stanford Encyclopedia of Philosophy (Winter 2023 Edition), Edward N. Zalta & Uri Nodelman (eds.), URL = < https://plato.stanford.edu/archives/win2023/entries/freedom-speech/ >. [This was the previous entry on this topic in the Stanford Encyclopedia of Philosophy – see the version history .]

ethics: search engines and | hate speech | legal rights | liberalism | Mill, John Stuart | Mill, John Stuart: moral and political philosophy | pornography: and censorship | rights | social networking and ethics | toleration

Acknowledgments

I am grateful to the editors and anonymous referees of this Encyclopedia for helpful feedback. I am greatly indebted to Robert Mark Simpson for many incisive suggestions, which substantially improved the entry. This entry was written while on a fellowship funded by UK Research & Innovation (grant reference MR/V025600/1); I am thankful to UKRI for the support.

Copyright © 2024 by Jeffrey W. Howard < jeffrey . howard @ ucl . ac . uk >

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Library of Congress Catalog Data: ISSN 1095-5054

freedom of speech

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Freedom of speech is the right to speak, write, and share ideas and opinions without facing punishment from the government. The First Amendment protects this right by prohibiting Congress from making laws that would curtail freedom of speech.

Even though freedom of speech is protected from infringement by the government, the government is still free to restrict speech in certain circumstances. Some of these circumstances include:

• Obscenity and Indecency – In Alliance for Community Media v. FCC , the Supreme Court found that obscenity and child pornography have no right to protection from the First Amendment, and as such, the government has the ability to ban this media altogether. But when it comes to indecency, which is generally defined by the courts as something describing or depicting offensive sexual activity, the Supreme Court has found this speech protected. But the government can regulate this speech on radio and television, so long as it’s for a compelling reason and is done in the least restrictive manner. 
• Defamation – Private and public figures are able to sue someone for statements they have made. Public figures must prove that the person made the statement with malice , which means knowing the statement was false or having a reckless disregard for the truth or falsity of the statement. (See  New York Times v. Sullivan ) . Private figures must prove the person failed to act with reasonable care when they made the statement. 
• Incitement – If a person has the intention of inciting the violations of laws that is imminent and likely, while directing this incitement at a person or groups of persons, their speech will not be protected under the First Amendment. This test was created by the Supreme Court in Brandenburg v. Ohio . 
• Fighting words  

While the public has a right to freedom of speech when it comes to the U.S. government, the public does not have this right when it comes to private entities. Companies and private employers are able to regulate speech on their platforms and within their workplace since the First Amendment only applies to the government. This right allowed Facebook, Instagram, and Twitter to ban President Donald Trump from their sites in 2021 without legal repercussion. Companies like Facebook and YouTube were also able to ban misleading information on Covid-19 during the 2020 pandemic.

The Supreme Court recently affirmed that private entities are not restricted by the First Amendment in the case Manhattan Community Access Corporation v. Halleck . Manhattan Neighborhood Network is a nonprofit that was given the authority by New York City to operate public access channels in Manhattan. The organization decided to suspend two of their employees after they received complaints about a film the employees produced. The employees argued that this was a violation of their First Amendment freedom of speech rights because they were being punished due to the content of their film. The Supreme Court held that Manhattan Neighborhood Network was not a government entity or a state actor , so the nonprofit couldn’t be subjected to the First Amendment.

In another case, Nyabwa v. Facebook , the Southern District of Texas also affirmed that private entities are not subject to the First Amendment. There, the plaintiff had a Facebook account, which spoke on President Donald Trump’s business conflicts of interest. Facebook decided to lock the account, so the plaintiff was no longer able to access it. The plaintiff decided to sue Facebook because he believed the company was violating his First Amendment rights. The court dismissed the lawsuit stating that the First Amendment prevents Congress and other government entities from restricting freedom of speech, not private entities. 

[Last updated in June of 2021 by the Wex Definitions Team ] 

Free Speech

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“Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.”

—U.S. Supreme Court Justice Benjamin N. Cardozo in Palko v. Connecticut

Freedom of speech, the press, association, assembly, and petition: This set of guarantees, protected by the First Amendment, comprises what we refer to as freedom of expression. It is the foundation of a vibrant democracy, and without it, other fundamental rights, like the right to vote, would wither away.

The fight for freedom of speech has been a bedrock of the ACLU’s mission since the organization was founded in 1920, driven by the need to protect the constitutional rights of conscientious objectors and anti-war protesters. The organization’s work quickly spread to combating censorship, securing the right to assembly, and promoting free speech in schools.

Almost a century later, these battles have taken on new forms, but they persist. The ACLU’s Speech, Privacy, and Technology Project continues to champion freedom of expression in its myriad forms — whether through protest, media, online speech, or the arts — in the face of new threats. For example, new avenues for censorship have arisen alongside the wealth of opportunities for speech afforded by the Internet. The threat of mass government surveillance chills the free expression of ordinary citizens, legislators routinely attempt to place new restrictions on online activity, and journalism is criminalized in the name of national security. The ACLU is always on guard to ensure that the First Amendment’s protections remain robust — in times of war or peace, for bloggers or the institutional press, online or off.

Over the years, the ACLU has represented or defended individuals engaged in some truly offensive speech. We have defended the speech rights of communists, Nazis, Ku Klux Klan members, accused terrorists, pornographers, anti-LGBT activists, and flag burners. That’s because the defense of freedom of speech is most necessary when the message is one most people find repulsive. Constitutional rights must apply to even the most unpopular groups if they’re going to be preserved for everyone.

Some examples of our free speech work from recent years include:

• In 2019, we filed a petition of certiorari on behalf of DeRay Mckesson, a prominent civil rights activist and Black Lives Matter movement organizer, urging the Supreme Court to overturn a lower court ruling that, if left standing, would dismantle civil rights era speech protections safeguarding the First Amendment right to protest.
• In 2019, we successfully challenged a spate of state anti-protest laws aimed at Indigenous and climate activists opposing pipeline construction.
• We’ve called on big social media companies to resist calls for censorship.
• We’re representing five former intelligence agency employees and military personnel in a lawsuit challenging the government’s pre-publication review system, which prohibits millions of former intelligence agency employees and military personnel from writing or speaking about topics related to their government service without first obtaining government approval.
• In 2018, we filed a friend-of-the-court brief arguing that the NRA’s lawsuit alleging that the state of New York violated its First Amendment rights should be allowed to proceed.
• In 2016, the we defended the First Amendment rights of environmental and racial justice activists in Uniontown, Alabama, who were sued for defamation after they organized against the town’s hazardous coal ash landfill.
• In 2014, the ACLU of Michigan filed an amicus brief arguing that the police violated the First Amendment by ejecting an anti-Muslim group called Bible Believers from a street festival based on others’ violent reactions to their speech.

Today, years of hard-fought civil liberty protections are under threat.

To influence lawmakers, we need everyone to get involved. Here is 1 action you can take today:

ARTICLE CONTENTS

Natural rights and the first amendment.

abstract . The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

author. Assistant Professor, University of Richmond School of Law. The author thanks Randy Barnett, Will Baude, Nathan Chapman, Saul Cornell, Jonathan Gienapp, Masha Hansford, Pam Karlan, Larry Kramer, Corinna Lain, Kurt Lash, Maeva Marcus, Michael McConnell, Bernie Meyler, Zach Price, Jack Rakove, Richard Re, Fred Schauer, Sid Shapiro, Larry Solum, Andrew Verstein, Kevin Walsh, the editors of the Yale Law Journal , and participants in the Federalist Society Junior Scholars Colloquium, the Georgetown Constitutional Law Colloquium, the Institute for Constitutional History Junior Scholars Seminar, the Loyola University Chicago Constitutional Law Colloquium, the Stanford Law School faculty workshop, the University of Richmond School of Law faculty workshop, the University of San Diego Originalism Works-in-Progress Conference, and the Wake Forest University School of Law faculty workshop.

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 speaking, 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 concept to sedition laws. 25

To set the stage for this historical argument, Part I discusses the Article’s historical contribution and previews its potential modern implications. It begins by offering a brief overview of related scholarship. This overview sets in relief the Article’s focus on the interplay between natural rights and the common law. The Part then explores the ways that this revisionist account could influence modern understandings of the First Amendment. In particular, it emphasizes that the Speech and Press Clauses were originally rooted in a broader Founding Era discourse about natural rights—not, as modern scholarship generally posits, a particular theory about why expression warrants constitutional protection.

Part II then turns to the history, drawing out three different meanings of speech and press freedoms at the Founding. First, speech and press freedoms were natural rights that were regulable in promotion of the public good, meaning the good of the society as a whole. 26 Second, the Founders widely thought that the freedom to make well-intentioned statements of one’s views belonged to a subset of natural rights, known as “unalienable” natural rights, that could not be restricted in promotion of the public good and thus fell outside legislative authority to curtail. 27 Third , Americans recognized a variety of common-law rules that offered more determinate legal protection for expressive freedom. 28 A concluding Section then explores the contested interrelationship between these concepts. 29

Part II, it bears emphasis, aims to recover the principles that Founding Era elites had in mind when designing and applying the Speech and Press Clauses, but it is not directly concerned with the original meanings of those provisions. Postponing that discussion until Part III is deliberate. Indeed, this Article defends the view that we cannot understand the meaning of the First Amendment until we first understand the forgotten language in which it was written.

With this conceptual framework in mind, Part III offers a novel interpretation of the original meanings of the Speech and Press Clauses. The argument proceeds by connecting the text and early interpretations of the First Amendment to the framework developed in Part II. Throughout the ratification debates and into the First Congress, supporters of a bill of rights pushed for constitutional recognition of existing concepts. Therefore, to the extent that Founding Era elites originally understood the First Amendment as imposing determinate limits on congressional power, these limits were delineated by accepted common-law rules and by the inalienable natural right to make well-intentioned statements of one’s thoughts. Beyond these principles, however, the First Amendment left unresolved whether certain restrictions of expression promoted the public good. In laying out this argument, this Part also rebuts competing scholarly accounts of the original meanings of the Speech and Press Clauses and emphasizes the ways in which these Clauses had distinct meanings.

The Article then concludes by returning to the modern implications of First Amendment history. A point of emphasis is the historical distance that separates us from our constitutional past. If the Supreme Court wanted to apply only those legal rules that the Founders recognized (or likely would have recognized), a huge swath of modern case law would have to go. There is no evidence, for instance, that the Founders denied legislative authority to regulate expressive conduct in promotion of the public good—a principle that runs contrary to countless modern decisions.

But beyond case-specific implications is a more fundamental point: the early history of speech and press freedoms undercuts the mythological view that foundational principles of modern doctrine inhere in the original Speech Clause. The Justices, for instance, have repeatedly asserted that the First Amendment itself strictly disfavors content-based regulations of speech. 30 And when the Court recently derided the government’s suggestion that some speech might be deemed “low value” and thus subject to less rigorous scrutiny, it acted as if the Speech Clause contains a full set of doctrinal rules. 31 Lowering judicial scrutiny for less valuable forms of speech, the Court explained, would “revise th[e] judgment” that “[t]he First Amendment itself reflects.” 32 Doubling down on this idea, the Court later insisted that “[t]he whole point of the First Amendment” was to prevent speech restrictions based on “a generalized conception of the public good.” 33

Simply put, however, the First Amendment did not enshrine a judgment that the costs of restricting expression outweigh the benefits. At most, it recognized only a few established rules, leaving broad latitude for the people and their representatives to determine which regulations of expression would promote the public good. Whether modern doctrine serves those original principles is then a judgment that we must make. The original meanings of the Speech and Press Clauses do not provide the answer.

I. stakes and implications

Before turning to the eighteenth century, it is worth making some preliminary remarks about this Article’s contribution to historical scholarship and its implications for modern doctrine.

A. Scholarly Contribution

This Article charts a new historical path by concentrating on the conceptual meanings , and not merely the legal dimensions, of speech and press freedoms. For much of the twentieth century, scholarship about expressive freedom at the Founding overwhelmingly focused on the compatibility of sedition prosecutions with the First Amendment. 34 While historically enlightening, much of this scholarship offered little clarity about the First Amendment’s original meaning beyond the topic of sedition. Some historians and legal academics have pursued that effort more directly, but the literature falls far short of consensus. Scholars typically treat speech and press freedoms as common-law rules, leading many to emphasize the ban on prior restraints. 35 Others, relying both on Federalist claims during the ratification debates and on Republican arguments against the Sedition Act, insist that the Speech and Press Clauses categorically withdrew all federal authority over expression. 36 Still more assert that the Speech Clause was linguistically and substantively derived from the legislative privilege of speech and debate. 37 Finally, many have simply thrown up their hands and declared the enterprise to be hopeless or misguided. 38

A few scholars have identified a connection between the First Amendment and natural rights, but none has accounted for the multifaceted way that the Founders referred to speech and press freedoms. Philip Hamburger, for instance, classifies both freedoms as natural rights, emphasizing governmental authority to prevent encroachment on the rights of others. 39 Yet Hamburger never grapples with the complex relationship between natural rights and customary legal rules—an issue that profoundly shaped Founding Era disputes about expressive freedom. 40 Meanwhile, others who describe speech and press freedoms as natural rights typically view the First Amendment as a categorical ban on any federal restrictions of expression. 41

This Article, by contrast, presents an understanding of Founding Era expressive freedom grounded on the interrelationship between common-law traditions and natural-rights principles. As a general matter, natural rights did not impose fixed limitations on governmental authority. Rather, Founding Era constitutionalism allowed for restrictions of natural liberty to promote the public good—generally defined as the good of the society as a whole. 42 Recognition of natural rights, in other words, simply set the terms of political debate, not the outcomes. In this sense, speech and press freedoms were expansive in scope—applying to all forms of expression—but weak in their legal effect. And no evidence indicates that the First Amendment empowered judges to determine whether particular restrictions of speech promoted the general welfare. 43 (Although perhaps strange to modern readers, this interpretation of the First Amendment—generally permitting the government to restrict speech in the public interest—survived into the early twentieth century. 44 )

Nonetheless, the Founders also accepted that speech and press freedoms denied the government narrower slices of regulatory power. Everyone agreed, for instance, that the liberty of the press encompassed at least the common-law rule against press licensing. Americans also prized the right to a general verdict in sedition trials—enabling juries to decide questions of law and fact—and the right to present truth as a defense. Based largely on natural-rights principles, the Founders further rejected governmental authority to punish well-intentioned statements of one’s thoughts absent direct injury to others. 45 But this principle did not extend to speech designed to mislead or harm others, nor is there evidence that it offered protection for what we now call “expressive conduct.” 46 In these limited ways, speech and press freedoms were narrow in scope but strong in their legal implications. And the legal dimensions of expressive freedom reveal how the Founders sometimes treated speech and press freedoms as distinct, with press freedom encompassing only the legal rights of printing-press operators.

The claims made in the previous two paragraphs—developed further in Part II—simply describe a historical system of thought that Founding Era elites widely embraced. This Article does not attempt the impossible task of uncovering how every American actually thought about expressive freedom. Consequently, the discussion of “original meaning” in Part III aims to recover how Founding Era elites understood (where we have direct evidence), or would likely have understood (where we lack direct evidence), the Speech and Press Clauses of the First Amendment. 47 But this Article has little to say about the views of Americans who were unfamiliar with the underlying principles of social-contract theory. 48

The interpretive relevance of my historical claims is therefore contingent. Scholars using some other methodology might propose an alternative understanding of the First Amendment as the correct meaning at the time of the Founding. 49 This Article cannot contest that claim because, as historical scholarship, it does not take any position on what made a constitutional interpretation “correct . ” 50 Rather, it argues that Founding Era elites widely embraced a particular system of thought and that this system of thought undergirded how those elites wrote and originally understood the First Amendment.

B. Implications for Modern Doctrine

Shifting from the perspective of a historian to that of a modern constitutional interpreter, however, it might be reasonable to assume that elite views suffice to show what now counts as an “original meaning.” After all, the historical evidence that scholars and judges routinely use in modern constitutional interpretation consistently reflects the perspectives of elites. 51

So what relevance does this history have today? Most judges and constitutional scholars think that Founding Era evidence does and should matter when interpreting the Constitution . 52 On this assumption, accounting for the original meanings of speech and press freedoms would have profound consequences for First Amendment theory and doctrine.

In terms of its consequences for theory, history undermines the notion that the First Amendment itself embraces a particular rationale for protecting expression. Such theories dominate modern debates. 53 The meaning and scope of the First Amendment, scholars usually posit, depend on why the Constitution singles out speech and press freedoms. 54 Some theories emphasize republican government, 55 others the marketplace of ideas, 56 and still more the autonomy of individuals. 57

Viewed historically, however, the First Amendment did not enshrine a particular rationale for expressive freedom. To be sure, the men who drafted and ratified the First Amendment had various reasons for why they valued expression. 58 And when it came time to apply the Speech and Press Clauses, various theories of expressive freedom could inform an assessment of the public good. But these theories were not themselves baked into the First Amendment.

Recovering the history of expressive freedom also has potentially dramatic consequences for legal doctrine. Worth highlighting, yet again, is the “utter differentness and discontinuity of the past.” 59 Indeed, modern speech doctrine, which emerged in the twentieth century, bears almost no resemblance to eighteenth-century judicial decisions. 60 And the Founders certainly did not envision courts crafting legal rules to prohibit speech-suppressing legislation that judges viewed as contrary to the public good. 61 In that sense, modern doctrine is fundamentally inconsistent with Founding Era law.

For originalists with a narrow conception of the judicial role, 62 this variance either calls for a radical dismantling of speech doctrine, or it requires a concession that precedent has displaced original meaning. 63 A huge swath of modern case law, after all, falls outside of the First Amendment’s original legal ambit, including its ban on prior restraints and its protection for well-intentioned statements of one’s thoughts. If an originalist wanted First Amendment doctrine to track Founding Era judicial reasoning, the Supreme Court’s decisions in Texas v. Johnson , 64 Boy Scouts of America v. Dale , 65 Citizens United v. FEC , 66 and Snyder v. Phelps , 67 among many, many others, would likely have to go. 68

But other originalists argue that judges are empowered, or even duty-bound, to give concrete meaning to underdeterminate constitutional provisions. 69 If one accepts this view, then modern law might still comport with original meaning. For instance, a natural-rights reading of the First Amendment would require the government to act for reasons that promote the public good, and modern doctrine can perhaps be understood, or justified, as prophylactic rules that help ferret out illicit motives. 70 To be sure, these judicial efforts bear little resemblance to anything that the Founders themselves would have endorsed. But they can still be seen as a way of implementing the original concepts of speech and press freedoms using modern doctrinal tools. 71 And it is to those historical concepts that we now turn.

II. natural rights at the founding

When James Madison proposed constitutional amendments in 1789, he noted that his draft included “ natural rights , retained—as Speech, Con[science] . ” 72 Indeed, eighteenth-century writers often identified speech as “a natural Right, which must have been reserved, when Men gave up their natural Rights for the Benefit of Society.” 73 But what were natural rights?

Section II.A explores the general eighteenth-century meaning of natural rights. In short, natural rights shaped how the Founders thought about the structure and purposes of government—ensuring that the government could restrain natural liberty only to promote the public good and only with the consent of the people. But these “rights” (including the natural right of speaking, writing, and publishing) generally were not determinate legal privileges or immunities.

Since natural rights were subject to governmental regulation, we might wonder why the Founders bothered amending the Constitution to include any of them. 74 Indeed, some Federalists made exactly this argument when opposing an enumeration of rights. The purpose of declaring rights, John Jay explained, was to establish that “certain enumerated rights belonged to the people, and were not comprehended in the royal prerogative.” 75 Under a republican government, however, all legislative power was exercised by elected representatives , thus obviating any need to enumerate natural rights. 76 Though puzzling today, Jay’s argument had considerable merit. Moreover, even among those who advocated for enumerating rights, many thought that declarations were hortatory, serving as a reminder, both to the people and to their government, of the reasons for instituting government and of the terms of the social contract and constitution . 77

Nonetheless, as Sections II.B and II.C demonstrate, the Founders often referred to certain rights, including speech and press freedoms, in a more legalistic way. Enumerated constitutional rights were “exceptions” to legislative authority, James Madison explained to Caleb Wallace in 1785. 78 This would have been quite a strange comment if Madison were alluding to liberty that could be regulated to promote the public good. Others called for a bill of rights so that a “Check will be placed on the Exercise of . . . the powers granted.” 79 Indeed, Thomas Jefferson claimed that enumerating rights would put a “legal check . . . into the hands of the judiciary,” 80 even though American elites broadly agreed that judges had no business resolving cases based on judicial assessments of the general welfare. 81

In fact, speech and press freedoms had assumed greater determinacy in two respects. First, as explained in Section II.B, the Founders recognized an inalienable natural right to express one’s thoughts, sometimes described as the “freedom of opinion.” Second, as shown in Section II.C, American elites widely embraced an assortment of common-law rules, including a ban on press licensing, that offered more determinate legal protections for expressive freedom. 82 In this way, speech and press freedoms were legally distinct, with the latter referring only to the customary legal rules that protected printing-press operators. Finally, Section II.D concludes with a discussion of the contested relationship between natural rights, inalienable natural rights, and the common law.

A. Natural Rights and Expressive Freedom

The intellectual foundation of Founding Era constitutionalism was social-contract theory. 83 Essentially, the theory was a thought experiment designed to reveal the proper scope and distribution of political authority. It began by positing a world without government , commonly known as a “state of nature,” in which individuals had only “natural rights.” The theory then explored why people in this condition would choose to organize politically. 84

Natural rights were any capacities that humans could rightly exercise on their own, without a government. (Positive rights, by contrast, were defined in terms of governmental action or inaction.) Consequently, natural rights encompassed nearly all human activities, sometimes summarized as a right to liberty or a “right to act . ” 85 More typically , however, natural-rights rhetoric developed around particular controversies. The natural rights to conscience and self-defense were part of the eighteenth-century lexicon, for instance, while other aspects of natural liberty , like eating and sleeping, were largely unmentioned. 86

Without recognizing this broader natural-rights discourse, scholars often view the freedom of speech as a term of art that originated with the legislative privilege of speech and debate, 87 or they conclude that “freedom of speech . . . had little history as an independent concept when the first amendment was framed.” 88 For the Founders, however, mentioning a “freedom to do something” naturally alluded to natural rights, without any need for further clarification or consistent terminology. 89

Not surprisingly, then, the Founders invoked the natural right of expressive freedom in all sorts of ways. References to the freedom of speaking, writing, and publishing seem to have been the most common, 90 probably because that phrasing appeared in the Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777. 91 In the committee that revised Madison’s proposed Bill of Rights, for instance, one draft mentioned “certain natural rights which [we] retained,” including the right “of [s]peaking, writing and publishing . . . with decency and freedom.” 92 B ut in the course of discussing natural rights, contemporaries also mentioned the “right to speak,” 93 “[t]he right of publication,” 94 “the natural right of free utterance ,” 95 the “liberty of discussion,” 96 “the liberty of the tongue,” 97 the “exercise of . . . communication,” 98 and so forth.

Eighteenth -century commentators sometimes referred to “the liberty of the press” as a natural right, too. 99 “Printing,” after all, was “a more extensive and improved Kind of Speech.” 100 Some Founders distinguished the freedom of publishing , as a natural right, from the freedom of the press , as a common-law rule against press licensing. 101 ( In eighteenth-century English, “ t he press” was a reference to printing; the term did not refer to journalists until the nineteenth century. 102 ) But the use of this terminology was fluid, and Founding Era discussions of press freedom often alluded to natural-rights concepts. 103 Some writers even equated “the Liberty of the Press” with “the Liberty of publishing our Thoughts in any Manner, whether by Speaking, Writing or Printing,” thus treating speech and press freedoms as synonymous. 104

Recognizing that expressive freedom was a natural right, however, is just the beginning. We also need to consider what that classification meant in terms of limits on governmental power. And that issue turned on two inquires: first , the scope of pre-political natural liberty, and, second , the extent to which individuals surrendered control of that liberty upon entering into a political society. As we will see, the Founders defined pre-political natural rights in two distinct ways, but this difference ended up being of little practical significance because of a comparable divergence over how much natural liberty individuals surrendered when leaving the state of nature.

In terms of the scope of natural rights, the Founders universally accepted that pre-political natural liberty was circumscribed by natural law. 105 At a minimum, natural law required that individuals not interfere with the natural rights of others. 106 There was no natural right to assault others, for instance, because assault interfered with the natural right of personal security. Viewed in this way, natural rights could be roughly understood as human liberty to act unless those acts directly harmed others.

But some Americans, informed by David Hume’s view that humans are inherently sociable, 107 defined natural law in terms of social obligations, too. “Man, as a being, sociable by the laws of his nature,” Vermont jurist Nathaniel Chipman observed, “has no right to pursue his own interest, or happiness, to the exclusion of that of his fellow men.” 108 James Wilson echoed this theme in his law lectures, explaining that natural law requires individuals to avoid injury, selfishness, and injustice. 109 Thus, Wilson explained, every person can act “for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labo u rs . This right is natural liberty.” 110

At the next stage of social-contract theory, the Founders imagined that individuals—recognizing the deficiencies of a state of nature —would unanimously agree to form a political societ y (or body politic ) under a social contract (or social compact ) . 111 “The body-politic is formed by a voluntary association of individuals,” the Massachusetts Constitution of 1780 characteristically declared, and “is a social compact , by which the whole people covenants with each citizen , and each citizen with the whole people , that all shall be governed by certain laws for the common good.” 112 Creation of a body politic, the Founders imagined, then set the stage for another pact , the constitution , in which the people vest ed power in a government by majority consent. 113

Elites widely agreed about the essence of the social contract—namely, that the political society should protect natural liberty and should limit freedom only to promote the public good. 114 And the Founders generally understood this concept of the public good in an aggregate, collective sense, embracing the “safety and happiness of society,” as Madison put it. 115 (A slew of interchangeable terms referred to the same idea, including “collective interest,” “common good,” “general utility,” “general welfare,” “public interest,” and so forth. 116 ) In the end, this framework prioritized the interests of the whole society over narrower private interests. The common good, the Founders repeatedly implored, often required individual sacrifices. 117 At the same time, however, “respect for the public interest meant that lawmakers had to consider everyone’s interests, and not merely those of particular individuals or factions.” 118

But while largely in agreement on substance, the Founders spoke in a confusing assortment of ways about the retention of natural rights. The most common phrasing was, as William Blackstone put it, that “every man, when he enters into society, gives up a part of his natural liberty.” 119 Meanwhile, others talked about it being “necessary to give up [natural] liberty” entirely , 120 or at least necessary to “surrender[] the power of controuling . . . natural alienable rights.” 121 Still more insisted that in forming a republic, “the people surrender nothing .” 122

This dizzying array of statements—that individuals retained some, all, or none of their natural liberty—has created an extraordinary amount of confusion among scholars. 123 And it would seem to indicate substantial differences of opinion among the Founders about the scope of their natural rights. In truth, however, the disagreement was semantic, not substantive, because competing views about the terms of the social contract mirrored the competing views about the scope of pre-political natural rights.

For those who viewed natural rights as inherently circumscribed by a concern for the general welfare, individuals could retain all of their natural liberty without creating any conflict with “the due exercise of the powers of government, for the common good.” 124 In 1816, for instance, Thomas Jefferson wrote that “ the idea is quite unfounded, that on entering into society we give up any natural right .” 125 But Jefferson clarified that these natural rights were limited not only by a prohibition on “commit[ing] aggression on the equal rights of another” but also by “the natural duty of contributing to the necessities of the society.” 126 Consequently, by incorporating social duties into natural law, no conflict arose between the preservation of natural rights and the exercise of governmental powers to promote the public good. 127 “To give up the performance of any action, which is forbidden by the laws of moral and social nature,” Nathaniel Chipman insisted, “cannot be deemed a sacrifice.” 128

This is not to say that natural rights were identically defined after the formation of a political society. Some natural rights, Chipman explained, “to render them universally reciprocal in society, may be subjected to certain modifications .” 129 Yet, these rights, he insisted, “can never justly be abridged ,” meaning they could not “suffer any dim[i]nution.” 130 This refrain was especially familiar with respect to property rights. Many people “consider property as a natural right,” James Wilson noted, but one that “may be extended or modified by positive institutions.” 131 Accordingly, as Wilson explained:

[B]y the municipal law, some things may be prohibited, which are not prohibited by the law of nature: but . . . every citizen will gain more liberty than he can lose by these prohibitions . . . . Upon the whole, therefore, man’s natural liberty, instead of being abridged , may be increased and secured in a government, which is good and wise. 132

A natural right that could not be modified , by contrast, was an aspect of natural liberty over which the government simply had no authority. 133

For those who thought that individuals gave up some of their natural liberty in a social contract, however, retained natural liberty was still regulable so long as those regulations were in pursuit of the public good and made by a representative legislature. 134 As William Blackstone observed, natural liberty could be “so far restrained by human laws . . .  as is necessary and expedient for the general advantage of the public.” 135 Importantly, this framework did not endorse governmental power to abridge retained natural rights. Rather, it simply recognized that individuals in a political society assumed certain reciprocal obligations that did not exist in a state of nature. 136 Regard for the public good, in other words, was always implicit in the retention of natural rights.

In sum, whether inherently limited by natural law or qualified by an imagined social contract, retained natural rights were circumscribed by political authority to pursue the general welfare. Decisions about the public good, however, were left to the people and their representatives—not to judges—thus making natural rights more of a constitutional lodestar than a source of judicially enforceable law. 137 N atural rights , in other words, dictated who could regulate natural liberty and why that liberty could be restricted, but they typically were not “rights” in the modern sense of being absolute or presumptive barriers to governmental regulation .

Speaking, writing, and publishing were thus ordinarily subject to restrictions under law s that promoted the public good. The principle that “Speech is a natural Right . . . reserved,” Thomas Hayter explained, was consistent with “the Power of Legislators, to restrain every impious, or immoral Abuse of speech” because “The principal End of every Legislature is the public Good.” 138 Or, as another writer put it, the “right to speak and act without controul . . . is limited by the law—Political liberty consists in a freedom of speech and action, so far as the laws of a community will permit, and no farther.” 139

Consequently, even though the Founders broadly acknowledged that speaking, writing, and publishing were among their natural rights, governmental limitations of expressive freedom were commonplace. B lasphemy and profane swearing, for instance, were thought to be harmful to society and were thus subject to governmental regulation even though they did not directly interfere with the rights of others . 140 Some states even banned theater performances because of their morally corrupting influence. 141 Although stated without qualification , and often viewed by modern interpreters as being unconditional , 142 natural rights were always implicitly qualified , with the scope of their qualifications often turning on assessments of public policy .

Yet while the Founders broadly agreed that governmental power should be defined and exercised only to promote the general welfare, they often disagreed passionately about the details. As Joseph Priestley noted, there was “a real difficulty in determining what general rules, respecting the extent of the power of government, or of governors, are most conducive to the public good.” 143 And nowhere was this difficulty more pronounced than the long-running controversy over sedition laws.

Arguments for punishing sedition were straightforward. It was “necessary for the preservation of peace and good order,” Alexander Addison of Pennsylvania explained, “to punish any dangerous or offensive writing, which, when published, shall, on a fair and impartial trial, be adjudged of a pernicious tendency.” 144 Proponents of this view rejected the argument that narrowly tailored sedition laws would stifle useful criticisms of government and that counter-speech was sufficient to prevent lasting harm. 145 “It may be said, that an unrestrained license to publish on the conduct of public men, would operate as a restraint upon [the government], and thus promote the public good,” Massachusetts Governor James Sullivan wrote, “but this is not true; an unrestrained license to publish slander against public officers, would . . . answer no possible valuable purpose to the community.” 146 In fact, some argued that it was even more necessary to punish sedition in a republic. “In a Republican Government, where public opinion rules everything,” John Rutledge Jr. insisted during the Federalist effort to reauthorize the Sedition Act in 1801, “it is all-important that truth should be the basis of public information.” 147

Other eighteenth-century writers, however, argued that punishing sedition would, in the long run, harm the general welfare, even though sedition itself was deleterious. “The great object of society—that object for which alone government itself has been instituted, is the general good ,” Elizabeth Ryland Priestley wrote in 1800. 148 Thus, she continued, “It may perhaps be urged, and plausibly urged, that the welfare of the community may sometimes, and in some cases, require certain restrictions on [an] unlimited right of enquiry: that publications exciting to insurrection or immorality for instance, ought to be checked or suppressed.” 149 Yet “ascertaining the proper boundary of such restrictions” would be vexing, she observed, and governmental power to regulate harmful speech, “once conceded, may be extended to every [opinion] which insidious despotism may think fit to hold out as dangerous.” 150 Moreover, as Republicans frequently argued, fear of being prosecuted might have a chilling effect on useful criticisms of government. 151

Notably, these arguments all relied on contingent judgments about public policy—not an understanding of natural rights that categorically permitted or barred governmental efforts to suppress expression, irrespective of the public good. 152 Americans thus offered vastly different visions of how far expressive freedom should extend (due to differing calculations of what best furthered the public good) even while sharing the same conceptual understanding of speech and press freedoms.

Further evidence of the Founders’ conceptual understanding of expressive freedom comes from their recognition of an equality between speech and press freedoms and, at the same time, their acceptance of distinct legal rules regarding oral and written statements. “The freedom of speech of writing and of printing are on equal grounds by the words of the constitution,” one commentator observed in 1782, referring to the Pennsylvania constitution. 153 As concepts, therefore, the freedoms of speaking, writing, and publishing were identical, allowing the government to punish only “the disseminating or making public of falsehoods, or bad sentiments, destructive of the ends of society.” 154 Yet these equivalent principles were perfectly consistent with broader liability and harsher punishment for written libels. “The reason,” the commentator explained, was that written statements were “more extended” and “more strongly fixed,” thus posing a greater threat to public order. 155 In short, speech and press freedoms were equivalent, as natural rights, but the legal implications of these rights differed.

B. Inalienable Natural Rights and the Freedom of Opinion

Unlike ordinary natural rights, which were regulable to promote the public good, certain inalienable natural rights imposed more determinate constraints on legislative power. 156 These rights, Nathaniel Chipman explained, were aspects of natural liberty that “can never justly be subject to civil regulations, or to the control of external power.” 157 Some writers limited this category to the freedoms of conscience and thought 158 without necessarily including a correlative liberty to exercise religion or to express thoughts. 159 “Op inions are not the objects of legislation ,” James Madison succinctly explained to his congressional colleagues in 1794. 160 Few would have disagreed. But by the late eighteenth century, Americans widely embraced the idea that the government could not prohibit well-intentioned statements of one’s thoughts, either.

Opinions were sacrosanct because they were understood to be non-volitional. 161 Unlike “ Volition , or Willing ,” John Locke explained, “in bare naked Perception the Mind is, for the most part, only passive; and what it perceives, it cannot avoid perceiving.” 162 Consequently, in Francis Hutcheson’s words, “the Right of private Judgment, or of our inward Sentiments, is unalienable; since we cannot command ourselves to think what either we our selves, or any other Person pleases . ” 163 Or, as Madison put it in his famous Memorial and Remonstrance , “the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.” 164 The freedom of opinion was thus, at its core, a freedom against governmental efforts to punish people for their thoughts. (The Founding Era term “freedom of opinion ” is thus somewhat misleading; the essence of the principle was protection for non-volitional thoughts . 165 )

Americans often invoked the freedom to have opinions to defend a correlative freedom to express opinions. 166 Among the natural rights that individuals had not surrendered to government, Thomas Jefferson wrote in 1789, were “ the rights of thinking, and publishing our thoughts by speaking or writing .” 167 The inalienability of this liberty was broadly recognized. All men had a right “of speaking and writing their minds—a right, of which no law can divest them,” Congressman John Vining observed in January 1791, before the First Amendment was ratified. 168 This right, Fisher Ames echoed in agreement, was “an unalienable right, which you cannot take from them, nor can they divest themselves of.” 169 Any abridgment of that right, he insisted, would be “nugatory.” 170

The freedom to express thoughts, however, was limited to honest statements—not efforts to deceive others. “The true liberty of the press is amply secured by permitting every man to publish his opinions,” Pennsylvania jurist Thomas McKean explained in 1788, “but it is due to the peace and dignity of society to enquire into the motives of such publications, and to distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame.” 171 For that reason, this Article often refers to a “freedom to make well-intentioned statements of one’s thoughts.” The Founders, immersed in their own constitutional language, hardly needed such a periphrastic term; they could simply invoke the “freedom of opinion” or “freedom of speech.”

Sedition laws were thus facially consistent with the freedom of opinion when confined to false and malicious speech. “Because the Constitution guaranties the right of expressing our opinions, and the freedom of the press,” Federalist John Allen asked rhetorically during the congressional debates over the Sedition Act, “am I at liberty to falsely call you a thief, a murderer, an atheist?” 172 Answering his own question, and again treating the First Amendment as guaranteeing “the liberty of opinion and freedom of the press,” 173 Allen implored 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. A man was always answerable for the malicious publication of falsehood; and what more does this bill require?” 174 Over and over, Federalists emphasized the requirement of “a false and malicious intention.” 175

Opponents of the Adams Administration saw through the Federalist charade, viewing the Sedition Act as part of “a legislative program designed to cripple, if not destroy, the Republican Party.” 176 Frequent complaints that Federalists had “countenance[d] a punishment, for mere freedom of opinion,” thus appear justified. 177 Yet in their more contemplative moments, some Republicans recognized that the Sedition Act itself fell short of abridging the freedom of opinion. If the law were perfectly administered, one Virginia editorial noted, “No person  . . . would be the subjects of ruin under this statute, unless they annexed to those opinions a design that was not pure.” 178 Or, as libertarian writer John Thomson acknowledged, if prosecutions “were not for the publication of opinions , then the Constitution has not been violated by them.” 179

Also notable about the Sedition Act controversy, however, was the nearly universal acknowledgment by Federalists that well-intentioned statements of opinion, including criticisms of government, were constitutionally shielded. 180 “[I]t is well known,” Alexander Addison remarked, “that, as by the common law of England, so by the common law of America, and by the Sedition act, every individual is at liberty to expose, in the strongest terms, consistent with decency and truth all the errors of any department of the government.” 181 Federalists, in other words, firmly rejected the long-discredited rule that “no private man can take upon him[self] to write concerning the government at all.” 182 By limiting the Sedition Act to false and malicious statements, and by providing a truth defense, 183 Federalists could reasonably claim fidelity to this longstanding respect for the freedom of opinion. Indeed, Federalists sought to renew the Sedition Act in January 1801—with a new administration poised to take the helm—because the Act, in their view, had “enlarged instead of abridg[ed] the ‘liberty of the press.’” 184

Scholars, however, routinely overlook Federalist support for expressive freedom. Defenders of the Sedition Act, one author writes, equated “the freedom of speech and press” with an understanding that “government could restrain speech post-publication or post-utterance in whatever way it pleased.” 185 In fact, not a single Federalist in Congress took that view. To be sure, many Federalists interpreted the freedom of the press as simply a rule against prior restraints—an idea that we will turn to next. 186 But the First Amendment, as Federalist Harrison Gray Otis explained, also guaranteed “the liberty of writing, publishing, and speaking, one’s thoughts, under the condition of being answerable to the injured party, whether it be the Government or an individual, for false, malicious, and seditious expressions, whether spoken or written.” 187 This was a qualified liberty, of course, and perhaps inadequate when executed by a partisan administration and partisan judiciary. But Federalists widely accepted the freedom of opinion, even in the late 1790s.

Readers may be curious about the scope of the freedom to make well-intentioned statements of one’s thoughts—whether, for instance, it applied to certain forms of expressive conduct like flag burning or political donations. Historical evidence offers no clarion answers, but the principles of social-contract theory frame the inquiry in a way that disfavors categorical protection for expressive conduct. To be sure, engaging in expressive behavior was an innate human capacity, so it was properly understood as falling within the natural right of expressive freedom. 188 But there was little basis for recognizing an inalienable natural right of expressive conduct. The scope of inalienable rights, after all, depended on whether individuals were physically capable of parting with certain aspects of natural liberty and, if so, whether collective control of that liberty would serve the public good. 189 Some expressive conduct, like instinctive smiles, surely fell on the side of inalienability. But when expressive conduct caused harm and governmental power to restrict that conduct served the public good, there is no reason to think that the freedom of opinion nonetheless immunized that conduct.

Consequently, although the freedom of opinion was fixed in some respects—allowing individuals to criticize the government in good faith, for instance—determining its scope called for the same policy-driven analysis that characterized the Founders’ general approach to natural rights. In short, outside of the core protection for well-intentioned statements of one’s thoughts, the boundaries of the freedom of opinion depended on political rather than judicial judgments.

C. Common-Law Rights and the Freedom of the Press

In addition to inalienable natural rights, state declarations of rights in the 1770s and 1780s also included numerous fundamental positive rights, like the right to trial by jury and the rule against ex post facto laws. Unlike “natural liberty . . . retain[ed],” one Anti-Federalist noted, fundamental positive rights were “particular engagements of protection, on the part of government.” 190 These were rights defined in relation to governmental authority. And what made them “fundamental” was an acceptance of their inviolability, usually based on their recognition in the social contract or constitution. 191 In short, these rights were, as Thomas Jefferson explained in 1790, “certain fences which experience has proved particularly efficacious against wrong, and rarely obstructive of right.” 192 Interestingly, Jefferson classified the freedom of the press as a fundamental positive right. 193

Scholars typically assert that the freedom of speech and the freedom of the press were equivalent, 194 and, as we have seen, those concepts were equivalent as natural rights. 195 Yet in the context of enumerated bills of rights, discerning the meanings of these freedoms is more complicated and reveals an important difference between speech and press freedoms. 196 The Pennsylvania Constitution of 1776, for instance, separated the “ right to freedom of speech, and of writing, and publishing ” from “ the freedom of the press .” 197 That split strongly suggests a distinction in meaning. And Jefferson’s letter suggests an intriguing explanation: the term “freedom of the press” could denote a particular fundamental positive right.

The content of this right was widely known. “The liberty of the press,” William Blackstone had famously declared, “ consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” 198 And without a governmental censor, local juries rather than royal agents controlled how far publishing could be restricted. “The liberty of the press, as established in England,” Jean Louis de Lolme wrote in 1775, effectively meant that courts considering libels against printers “must . . . proceed by the Trial by Jury.” 199

Americans , and particularly those with legal training, frequently echoed these ideas . “[W]hat is meant by the liberty of the press ,” James Wilson observed during the 1787 ratification debates, “ is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual .” 200 Others mentioned the importance of empowering juries to determine the proper bounds of expressive freedom. “[S]hould I be unjustly accused of [sedition],” Virginia lawyer Alexander White remarked, “the trial by a jury of my countrymen is my security—if what I have said or wrote corresponds with their general sense of the subject, I shall be acquitted.” 201

In sum, although many of the Founders discussed press freedom as a natural right, it also had a readily available meaning as a fundamental positive right against press licensing, thus empowering juries to determine the proper scope of expressive freedom.

D. Nature and Law

The notion that speech and press freedoms referred to natural rights, inalienable natural rights, and fundamental positive rights may appear confused or even contradictory. In the eighteenth century, however, these rights were closely intertwined. 202 The fundamental positive rights embodied in common law informed understandings of natural rights, and vice versa.

The common law did not directly recognize natural rights as a set of positive rights. Natural rights, after all, were simply the liberty that humans would enjoy in a state of nature, bounded by the dictates of natural law. In contrast to positive rights, they were not defined in terms of governmental action or inaction. When a constitution protected certain natural rights against abridgment, however, it became important to determine the scope of retained natural liberty. And to assist with this task, the Founders naturally turned to positive law, and particularly the common law.

The common law was probative, in part, because it helped define the natural-law boundaries of natural rights. 203 Natural law, we must recall, was not a finely tuned set of legal rules. Rather, it embodied the dictates of reason and justice. “We discover it,” James Wilson explained, “by our conscience, by our reason, and by the Holy Scriptures.” 204 Not surprisingly, therefore, the Founders recognized considerable underdeterminacy about what natural law required. 205 “[W]hoever expects to find, in [reason, conscience, and the Holy Scriptures], particular directions for every moral doubt which arises,” Wilson cautioned, “expects more than he will find.” 206

In day-to-day practice, then, natural law itself provided little guidance about how to resolve difficult legal questions. Instead, lawyers and judges used a system of customary legal rules known as the common law. Yet the legal system operated on the assumption—or at least the fiction—that the common law and natural law were in harmony. 207 “The common law ,” Alexander Addison characteristically observed, “is founded on the law of nature and the revelation of God.” 208 Consequently, the common law could help determine the proper boundaries of natural liberty. Governmental powers recognized at common law were presumptively acceptable, while common-law limits on those powers (such as the rule against prior restraints) recognized presumptively unjustified abridgments of natural rights .

Moreover, for those who viewed social obligations as stemming from common consent rather than from natural law, the common law helped delineate the scope of those obligations. The common law, after all, had the presumptive consent of the people over an extended period. “[L]ong and uniform custom,” English jurist Richard Wooddeson explained, “bestows a sanction, as evidence of universal approbation and acquiescence.” 209 Though certainly not immune to change, 210 the common law at least presumptively comported with the reciprocal obligations that individuals had assumed in the social contract. In short, customary positive law helped reveal the proper scope of natural liberty.

At the same time, Americans sometimes used natural-law reasoning to shape their understanding of positive law. This approach reflected the prevalent view that positive law should reflect and conform to natural law. “[M]unicipal laws are under the control of the law of nature,” Wilson noted in his law lectures, meaning that natural law was superior to positive law. 211 Because of its underdeterminacy, natural-law reasoning was typically reserved within legal circles for resolving ambiguities in the common law or statutory law; judicial assessments of natural justice could not displace positive law. 212 Among the laity, however, the priority of natural law sometimes prompted calls for an abandonment of legal pedantry. “It is our business to do justice between the parties,” John Dudley of New Hampshire opined about the jury’s role, “not by any quirks of the law out of Coke or Blackstone, books I have never read, and never will, but by common sense and common honesty as between man and man.” 213 Some Republican lawyers took a similar view. The meaning of Virginia’s press clause, lawyer George Hay opined, “presents a great constitutional question, the solution of which depends, not on cases and precedents furnished by books, but on principles whose origin is to be traced in the law of nature, and whose validity depends on their tendency to promote the permanent interests of mankind.” 214

Not surprisingly, then, forceful disagreements emerged about the extent to which the common law defined the scope of natural rights. 215 During the ratification debates, for instance, lawyers like James Wilson, Rufus King, and Alexander White equated press freedom with the common-law rule against press licensing. 216 A decade later, when Republicans attacked the Sedition Act of 1798 as violating the freedom of the press, Federalist lawyers again turned to the familiar terrain of legal authority. “By the freedom of the press,” jurist Alexander Addison insisted, the Press Clause “must be understood to mean the freedom of the press as it then existed at common law in all the states.” 217

For Americans with less elitist inclinations, however, determining the scope of natural rights was not exclusively within the ken of professionally trained lawyers. James Madison’s famous Virginia Report of 1800, for instance, made arguments from “plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts” to wage an extended attack on Federalist reliance upon the common law. 218 It would be a “mockery” to confine press freedom to a rule against prior restraint, Madison implored, because post-publication punishments would have the same effect of suppressing expression. 219 Moreover, practical experience showed that American printers enjoyed a “freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law.” 220 It was thus “natural and necessary,” Madison concluded, that press freedom in the United States went beyond the confines of English common law. 221

Scholars, it is worth cautioning, have overstressed this part of the Virginia Report. Madison, whose views on expressive freedom were more liberal than those of his colleagues, plainly identified these observations as being “for consideration only,” without, “by any means, intend[ing] to rest the [constitutional] question on them.” 222 (The Virginia Report actually rested its constitutional argument on the First Amendment’s supposed denial of federal power to impose any restrictions on printers.) 223 Nonetheless, Madison’s mode of reasoning in this political dictum reflected an important strand of Republican thought grounded in a natural-rights view of expressive freedom.

III. explicating the first amendment

Now that we have a grasp on how the Founders talked about rights in general, and about speech and press freedoms in particular, we can more closely evaluate the original meanings of the First Amendment .

This Part begins with an analysis of the ratification debates and drafting of the First Amendment. It draws two principal conclusions. First , the impetus for a bill of rights was a desire to enumerate well-recognized rights, not create new ones. Consequently, historical context strongly supports the view that the Speech and Press Clauses incorporated the meanings of expressive freedom discussed in Part II. Second , although originalist scholarship tends to treat speech and press freedoms as equivalent, the ratification debates reinforce that the Founders often referred to these ideas distinctly, particularly when mentioning press freedom as a fundamental common-law right.

Then, Section III.B synthesizes the evidence in Part II and Section III.A to assess the most likely original meanings of the Speech and Press Clauses. It argues that the Speech and Press Clauses recognized both abstract principles and concrete legal rules that were grounded in Founding Era rights discourse. The Section then responds to some competing accounts of the First Amendment’s original meaning.

A. Enumerating Expressive Freedoms

The Constitution drafted by the Philadelphia Convention famously lacked a declaration of rights. 224 T h is omission quickly became a favorite point of attack for the opponents of ratification, commonly known as the Anti-Federalists. 225 Especially dangerous, Anti-Federalists insisted, was unchecked congressional power under the Necessary and Proper Clause. 226 “The powers, rights, and authority, granted to the general government by this constitution,” Brutus explained, “are as complete, with respect to every object to which they extend, as that of any state government.” 227 Consequently, a federal declaration of rights was every bit as necessary as state declaration s in order to restrict the means of federal power.

Anti-Federalists often focused their criticisms on the lack of protection for the freedom of the press. But their references to press freedom were usually cursory, with no elaboration about what the term meant or what a declaration in its f avor would accomplish. Often Anti-Federalists simply pointed out numerous ways that the federal government could regulate printers —whether through “the trial of libels , or pretended libels against the United States , ” 228 taxes on newspapers, 229 the copyright authority, 230 or federal power over the capital district. 231 Importantly, these worries often went beyond mere concern about prior restraints, 232 but Anti-Federalists rarely suggested how an enumerated guarantee of press freedom would constrain federal authority . 233

Notably, the freedom of speech played almost no role in the public jousting that occurred in newspapers, pamphlets, and state ratification conventions. 234 Anti-Federalist fears about unenumerated rights, it turns out, usually focused on positive rights that imposed more determinate limits on governmental authority. 235 (Scholars, by contrast, often describe the freedom of speech as an important Anti-Federalist issue, but their evidence notably mentions only the liberty of the press, again highlighting the scholarly conflation of speech and press rights.) 236 Amidst the wide-ranging and creative arsenal of Anti-Federalist arguments, concern about the freedom of speech was conspicuously missing.

In response to Anti-Federalist admonitions about the liberty of the press , Federalists generally made two related arguments. First, many explained that bills of rights were merely declaratory of pre-existing rights and were therefore legally unnecessary. 237 It was “absurd to construe the silence  . . . into a total extinction” of the press right, John Jay insisted, because “silence and blank paper neither grant nor take away any thing.” 238 The Virginia and New York ratification conventions later passed declaratory resolutions making the same point. 239 Indeed, many Federalists thought that fundamental positive rights were recognized in the social contract, 240 obviating any need for subsequent enumeration, just as modern legislation hardly needs to specify that it operates only within constitutional boundaries.

Second, Federalist d enials of authority to abridge the liberty of the press relied on the lack of any enumerated power that would justify a licensing regime. In response to the Anti-Federalist argument that the federal government might abridge the freedom of the press under the taxing power, for instance, Alexander Hamilton asked in Federalist No. 84 , “ why declare that things shall not be done which there is no power to do?” 241 But Hamilton, unlike some of his Federalist colleagues, 242 was not rejecting all federal power over printers . Rather , he clarified, “declarations . . . in favour of the freedom of the press” were not understood to be “a constitutional impediment to the impositions of duties upon publications.” 243

When it came to natural rights, Federalists used a similar tack. Rather than denying any federal authority over speech, Federalists insisted that protections for natural liberty were superfluous under republican governments. As we have seen, 244 that argument had considerable merit. In some sense, the people in a republic retained every aspect of natural liberty because no natural rights were surrendered to an unaccountable monarch. Enumerating retained natural rights, Federalists therefore concluded, would be pointless. In republics, Alexander Hamilton explained in Federalist No. 84 , “the people surrender nothing, and as they retain every thing, they have no need of particular reservations.” 245

As the ratification contest dragged on, however, some Federalists gradually perceived a need for amendments to quell Anti-Federalist opposition. 246 Declaring rights, they realized, would help undercut Anti-Federalist calls for broader reforms. 247 Some men, including Thomas Jefferson and James Madison, also came to recognize merit in the Anti-Federalist arguments. 248 Al though Congress was confined to enumerated powers, Madison explained in his speech introducing a draft of amendments to the House of Representatives that it “has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the s tate g overnments under their constitutions may to an indefinite extent.” 249

Madison was not admitting that Congress could properly abridge customary rights. Nonetheless, Congress had power under the Necessary and Proper Clause “to fulfil every purpose for which the government was established,” and it was “for them to judge of the necessity and propriety to accomplish those special purposes.” 250 Madison had previously criticized declarations of rights as mere “paper barriers,” but in his congressional speech he justified the m as having “a tendency to impress some degree of respect for [rights] , to establish the public opinion in their favor, and rouse the attention of the whole community.” 251 Moreover, he noted, a written guarantee would help embolden judges to uphold their legal duty to enforce certain rights. 252 In short, an enumeration of rights might be useful after all .

Madison’s initial proposal for constitutional recognition of expressive freedom was divided in two parts: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 253 His notes suggest that he also remarked to his colleagues that speech and conscience were among the “ natural rights , retained .” 254 By contrast, his separation of the right of speaking, writing, and publishing from the freedom of the press suggests a positive-law connotation of press freedom. 255

This dual structure became clearer within the House Committee of Style when Roger Sherman proposed dividing these clauses into separate articles. In one article, he addressed “certain natural rights which are retained,” including the right “of Speaking, writing and publishing . . . with decency and freedom.” 256 Six articles later, he presented a two-part ban on licensing rules: “Congress s hall not have power to grant any monopoly or exclusive advantages of C ommerce to any person or Company; nor to restrain the liberty of the Press.” 257 Notably, only Sherman’s proposed press clause, surely meant as a rule against press licensing, was framed as a categorical denial of congressional power.

For unknown reasons, but probably just for sake of brevity, the Committee of Style shorten ed Madison’s proposal to read : “The freedom of speech, and of the press, . . . shall not be infringed.” 258 And, with various revisions accepted in the Senate, the third proposed amendment eventually read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 259 The drafters of the final version of the amendment thus, perhaps unwittingly, stripped away the earlier textual indication that speech and press freedoms had distinct meanings.

B. Original Meanings

So, what did the Speech and Press Clauses originally mean? A detailed answer to that question would require an account of what it means for a clause to have a “meaning,” 260 both conceptually and in terms of evidentiary thresholds. And the Founders often disagreed about methods of constitutional interpretation, so assigning a definitive “original meaning” to any constitutional clause may require contestable methodological choices. 261 Rather than venturing down that path, this Section simply points out a range of possibilities that—while different in some respects—display a substantial degree of agreement among Founding Era elites. In doing so, it focuses on conceptual meanings of the Speech and Press Clauses, not their precise doctrinal details. This synthesis suggests that the best account of the First Amendment’s meaning is likely one rooted in a multifaceted view of expressive freedom, recognizing the interplay of natural rights, inalienable natural rights, and fundamental common-law rights. Importantly, this account reveals, at least in some respects, distinct meanings of the Speech and Press Clauses.

Because expression was a natural right, one possibility is that the Speech and Press Clauses originally referred exclusively to ordinary natural rights that were fully regulable to promote the public good. 262 Under this view, customary protections for speech and press freedoms would likely suggest the proper bounds of natural liberty—perhaps even directing judges to interpret statutes “equitably” to avoid conflicts with these longstanding rules—but without imposing any fixed, judicially enforceable restraints on legislative power. 263 The Speech and Press Clauses, in other words, might have had legal implications without constitutionally ossifying any particular set of legal rules.

This is a plausible view. Speaking, writing, and publishing were liberties that people could exercise without governmental intervention, and the Founders thus viewed these freedoms as being among their natural rights. This liberty, moreover, was circumscribed by social obligations—either imposed by natural law or voluntarily assumed in a social contract—and therefore only restrictions of expression beyond those that promoted the public good were “abridgments” of natural rights. 264 Consequently, as Republican lawyer George Hay summarized in 1799, a natural-rights understanding of the First Amendment would “amount precisely to the privilege of publishing,” as well as speaking and writing, “as far as the legislative power shall say, the public good requires.” 265

Other Founding Era commentary supports the possibility that the Speech and Press Clauses referred exclusively to natural rights. Not all aspects of Founding Era bills of rights, we must recall, had determinate meanings. Indeed, some declarations of rights announced principles that were, as Alexander Hamilton disparagingly put it in Federalist No. 84 , “aphorisms” that “would sound much better in a treatise of ethics than in a constitution of government.” 266 Provocatively, and perhaps disingenuously, Hamilton insisted that the freedom of the press was so indeterminate that “whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.” 267

Nonetheless, the Founders often described declarations of rights as supplying stricter limits on legislative authority. A bill of rights, Theophilus Parsons remarked, should specify both “unalienable natural rights,” over which “the supreme power hath no control,” and a set of fundamental positive rights, “also unassailable by the supreme power.” 268 Indeed, one of James Madison’s principal rationales for a bill of rights in 1789 was to limit the “discretionary powers with respect to the means ” of federal authority. 269 If state bills of rights were useful “for restraining the state governments,” Madison explained, “there is like reason for restraining the federal government.” 270

Viewed in this light, it makes sense to construe the First Amendment as imposing at least some fixed limits on federal power. There is a compelling case, for instance, that the Press Clause codified at least a positive right against press licensing, thus putting juries in charge of restricting speech. 271 Meanwhile, the freedom of speaking, writing, and publishing —likely invoked in the Speech Clause—shielded from regulation any well-intentioned statements of one’ s thoughts (subject, of course, to the natural-law proscription against abridging the rights of others) . 272 As with most other enumerated rights, these principles constrained the means that the federal government could employ when exercising its other powers. And this positive-rights dimension of the Speech and Press Clauses reveals an important distinction in their meanings.

Following this train of thought, perhaps the Speech and Press Clauses referred exclusively to these more determinate customary rules, without directly recognizing a retention of the broader (but shallower) natural right of expressive freedom. Federalists in the late 1790s, it turns out, often interpreted the First Amendment in precisely this way. “By the freedom of the press,” Addison implored, the Press Clause “must be understood to mean the freedom of the press as it then existed at common law in all the states.” 273

Finally, perhaps the Speech and Press Clauses in the First Amendment recognized both the natural right of expressive freedom (in which the Speech and Press Clauses had a common meaning) and the more determinate customary protections for expression (in which the Speech and Press Clauses had distinct meanings). Like the other historical accounts of the First Amendment’s original meaning, this interpretation recognizes the interplay between natural rights, inalienable natural rights, and positive law, and it differs only by suggesting that this full spectrum of rights was incorporated into the Constitution itself. The First Amendment, on this account, recognized any customary legal principles that protected speech and the press while also recognizing that, apart from these rules, Congress was otherwise free to limit expression in pursuit of the public good (subject, of course, to any other constitutional constraints). In my view, this account best fits the available historical evidence, which shows the Founders constantly and fluidly moving between different notions of speech and press freedoms. Moreover, isolating First Amendment rights to a particular aspect of Founding Era expressive freedom seems dubious in light of the Ninth Amendment’s implied reservation of rights.

In sum, it remains debatable whether the Speech and Press Clauses directly recognized ordinary natural rights, a set of more determinate legal rights, or both. But because of the fluid relationship between natural rights and positive rights, all of these possibilities point in basically the same direction: the First Amendment recognized (either implicitly or outright) the ordinary natural right of expressive freedom along with (either absolute or presumptive) protection for a set of customary rules with more determinate legal meanings. 274

Other accounts of original meaning, however, are much less plausible. A common view is that the “freedom of speech” in the First Amendment was analogous to the “freedom of speech and debate” mentioned in Article I (and in various state constitutions) . 275 That freedom was a separation-of-powers rule, barring legislators from being punished by the executive or judiciary for their speeches and activities within the legislative chamber. 276 But legislatures could, and occasionally did, punish their own members at will. 277 Based on this supposed genealogy of the freedom of speech, scholars often conclude that the First Amendment’s protections are confined to political expression—the type of speech that typically occurs in legislative assemblies. 278

This interpretation of the Speech Clause has a variety of problems. First and foremost, legislative privilege played basically no role in Founding Era debates about the First Amendment. 279 This lack of historical evidence may not bother “intratextualists,” who are known to “draw[] inferences from the patterns of words that appear in the Constitution even in the absence of other evidence that these patterns were consciously intended.” 280 This Article’s analysis, however, focuses on historical understandings of speech and press freedoms, not modern textualist theories. And there simply is no evidence that anybody in the late 1780s thought that the freedom of speech was directly analogous to, or drew its meaning from, the legislative privilege of speech and debate. Another difficulty is that the Founding Era right of speaking, writing, and publishing clearly extended to any subject, not just to political matters. 281

Other scholars assert that the Speech Clause made speech “not subject to legislative regulation for the public good” but “nevertheless limited by the rights of others.” 282 Reading the text of the First Amendment in isolation might support this so-called “libertarian” view. For those Founders who defined natural rights without regard to social obligations, after all, restrictions of natural liberty to promote the common good could easily be understood as “abridgments” of the liberty that had existed in a state of nature.

Viewed in historical context, however, this “libertarian” interpretation of the First Amendment is incomplete. To be sure, the Founders thought that the freedom to make well-intentioned statements of one’s views was an inalienable natural right, rendering improper any restrictions that did not flow from natural law. And since the government itself did not possess natural rights that could be abridged, it was beyond the power of the government to punish speech that criticized the government in good faith. 283 These were important departures from the view that speech was always regulable in the public interest.

But the freedom of opinion did not encompass all expression. Individuals who joined together in a social contract, after all, had no reason to immunize efforts to lie or mislead. Nor did they need to prevent the government from preserving norms of civility and morality, like rules against blasphemy and profane swearing. Indeed, the Founders constantly mentioned that the inalienable right to speak was limited to those who spoke with decency and truth, 284 and state governments routinely and uncontroversially restricted plenty of speech that did not directly violate the rights of others. 285 Evidence from the late 1780s and early 1790s provides no indication that the First Amendment adopted a different understanding of expressive freedom.

Just the opposite, in fact. The Founders widely viewed enumeration as a conservative project meant to preserve existing rights, not to change their meaning or scope. 286 The proposed amendments, James Madison informed his congressional colleagues, provided for “simple and acknowledged principles” and not ones of “a doubtful nature . ” 287 The purpose of enumeration, in other words, was to guarantee at the federal level the rights already recognized by state constitutions and social contracts. Consequently, to the extent that states could regulate expression without “abridging” reserved natural liberty, the federal government could properly do so as well. 288 The freedom of expression that could not be “abridged,” in other words, was a liberty qualified by social obligations that stemmed either from natural law or from the imagined social contract. 289

Nor did the First Amendment, as some scholars suggest, elevate speech to a constitutionally privileged liberty interest to be defended by free-ranging judicial supervision. 290 Founding Era judges, after all, were confined to defending “marked and settled boundaries” of governmental authority, disregarding legislation only where constitutional violations were clear. 291 Judges could not apply jurisprudential concepts “regulated by no fixed standard” on which “the ablest and the purest men have differed,” 292 even when those principles were enumerated in a written Constitution. 293 Judicial applications of the First Amendment were therefore limited to enforcing customary legal principles, 294 even though the concept of expressive freedom, as a natural right, had a far broader range of potential implications.

Finally, the First Amendment did not comprehensively ban federal regulations of expression. 295 This view became prominent only later in the 1790s, when Republicans realized that Federalist control of all three branches of the federal government, combined with the administration’s ability to choose jurors, threatened their political survival. 296 The First Amendment, many Republicans argued, imposed a “total exemption of the press from any kind of legislative control,” leaving state common-law suits for abridgments of private rights as the only permissible limits on expression. 297

Modern proponents of this view find support in the First Amendment’s opening phrase, “Congress shall make no law.” 298 However, a provision that “Congress shall make no law past some threshold”— such as the abridgment of the freedom of speech or of the press— simply does not suggest a lack of regulatory power leading up to that threshold. If anything , it implies just the opposite, as Federalist defenders of the Sedition Act repeatedly pointed out with glee. 299

Another amendment passed by the House of Representatives in 1789 reinforces that the First Amendment did not withdraw all authority regarding speech and the press. In addition to declaring that “[t]he Freedom of Speech, and of the Press . . . shall not be infringed”—a rule applicable only to the federal government—the House passed a propos al that “[n]o State shall infringe . . . the freedom of speech, or of the press.” 300 If infringement s of speech and press freedom s arose from any controls over expression , then this proposal would have barred state laws against libel, defamation, conspiracy, threats, profanity, blasphemy, perjury, sedition, and so forth. All of these laws, after all, suppress various forms of communication. But no evidence suggests that the House of Representatives was radically proposing to bar any federal or state limits on expression . 301 Rather, the First Amendment —just like its state-restraining counterparts—left ample room for the government to regulate speech in promotion of the public good, so long as it respected customary legal protections as well .

IV. using history

How might this history inform modern constitutional interpretation? Most judges and scholars incorporate history into their interpretative method in some way. 302 But uses of history vary substantially. Originalism in particular now comes in many forms, and the Founding Era history of speech and press freedoms might inform originalist analysis in a range of ways.

One option is simply to return wholesale to a Founding Era perspective, recognizing that judges are not well positioned to evaluate whether a legislature has acted in good faith or whether restrictions of speech promote the public good. 303 In short, this approach would call for dismantling a huge swath of modern free-speech law. For instance, the Supreme Court’s foundational decision in New York Times v. Sullivan , 304 which makes it harder for public officials to sue for defamation, conflicts even with the libertarian strand of Founding Era thought. 305 And while the Founders viewed well-intentioned statements of one’s thoughts as shielded from regulation, there is no indication that this principle would have extended to, say, donations to a political candidate. 306 Even assuming that giving money to a campaign is expressive, or is an exercise of the natural right to freedom of association, this activity was among the countless aspects of natural liberty subject to regulations that promote the general welfare.

Of course, many who use history in constitutional interpretation also accept the authority of precedent and may thus perceive modern speech law as too entrenched to be properly overruled. 307 Even under this view, Founding Era history may still have “gravitational force” in resolving ambiguities in modern doctrine. 308 Judges, for instance, often use conflicting definitions of what it means for a speech regulation to be “content based,” and a historically grounded approach may help resolve contested issues of this sort. 309

If we set aside Founding Era conceptions about the judicial role, 310 however, then modern doctrine is far easier—though perhaps still difficult—to justify on historical terms. In particular, a natural-rights reading of the Speech Clause would require the government to act for reasons that serve the public good , and scholars have noted that speech doctrine is largely structured as a way of smoking out illicit motives. 311 The heightened scrutiny that applies to content-based regulations, for instance, may correspond to an increased risk of parochial, rather than public-spirited, objectives.

Indeed, rather than serving as categorical legal “immunities” or “trumps,” modern free-speech rights often simply force the government to show a sufficient justification for abridgments of speech. 312 “Rights are not general trumps against appeals to the common good or anything else,” Richard Pildes explains about modern American law. 313 “[I]nstead,” he writes, “they are better understood as channeling the kinds of reasons government can invoke when it acts in certain arenas.” 314 A ban on all fires in public, for instance, would trigger a lower degree of judicial scrutiny than a ban on flag burning, even though both would effectively ban flag burning. 315 And in either scenario, the government would have a chance to show that the law is sufficiently tailored to serve sufficiently important governmental interests. Modern doctrine, in other words, still accommodates certain claims to the public good. 316

But certain claims only. The Court has staunchly resisted the notion, for instance, that claims to the public good might factor into the threshold decision of how closely courts should scrutinize speech restrictions. “The whole point of the First Amendment,” the Court recently declared, “is to afford individuals protection against [speech] infringements” justified by “a generalized conception of the public good.” 317 Rather, the Court has generally relegated the public-good analysis to the second stage of its analysis, thus putting the burden on the government to show the necessity of speech regulations and giving judges responsibility for ensuring, in the case of content-based regulations, that the proffered governmental interests are “compelling.” The public good can still override the speech right, but only rarely. 318

This approach departs from history in two ways: First, it waters down what was originally absolute protection for well-intentioned statements of one’s views—a category of speech over which the Founders often said that the government simply had no power (except to regulate statements that violated natural law). Second, beyond this category, modern doctrine inverts the Founding Era understanding of freedom of speech as a natural right by putting the onus on the government to demonstrate a “compelling” justification for speech restrictions and by making judges the arbiters of what interests are compelling. Historically, it was up to legislators to assess which restrictions of speech would best serve the common good, with very little room for judicial oversight. Speech doctrine has thus followed a familiar pattern across an array of constitutional rights in the twentieth century: a vast expansion in the scope of rights coupled with a notable decrease in the afforded level of protection. 319

Still, history offers at least some support for our non-absolutist approach to expressive freedom. Given the absence of any explicit textualist basis for a tiers-of-scrutiny approach, speech law is open to criticism by those who view rights as absolutes. The First Amendment’s opening declaration that “Congress shall make no law,” Justice Black famously insisted, does not invite judges to balance its protections against countervailing social interests. 320 Yet if Black had read the text of the First Amendment in a historically informed way, he might have been more sympathetic to the tiers-of-scrutiny approach that his colleagues on the Supreme Court were beginning to adopt. After all, beyond their protection for a narrow set of customary legal rights, the Speech and Press Clauses simply recognized the natural right of expressive freedom, and natural rights were always implicitly qualified by legislative authority to promote the public good.

On this view, modern doctrine is valid so long as it tries to confine the processes of democracy to a good-faith pursuit of the public good—a goal that aligns with a democracy-reinforcing account of judicial review 321 —or, perhaps, so long as it confines policy outcomes to those that comport with the public good. (The proper level of generality to use in making these decisions is unclear.) As noted above, 322 for instance, one could defend the tiers-of-scrutiny approach as a way of teasing out whether the government was restricting speech for public-spirited reasons or was simply trying to insulate itself from criticism. Or one might take the view that content-neutral regulations of speech are, on the whole, conducive to the public good, whereas content-based restrictions erode the benefits of an open speech marketplace. 323 But on either view, modern interpreters must make our own assessments of which doctrines best fulfill these objectives.

In giving doctrinal precision to underdeterminate constitutional provisions, Jack Balkin explains, “we are permitted, even encouraged, to favor some [historical] opinions over others—even minority opinions in their day—and render judgments on the past.” 324 In other words, although the history of speech and press freedoms might settle the meanings of the Speech and Press Clauses, we can learn from the mistakes of history in deciding how to apply those provisions today. Founding Era support for punishing sedition and blasphemy, for instance, would not prevent us from making our own determination about the consistency of these laws with the public good. Consequently, although the constitutional reach of governmental power over speech is certainly far different now than it was at the Founding, modern speech law could nonetheless have deeper historical roots, or more feasible historical justifications, than scholars often realize.

Rather than justifying modern rules in this way, however, the Supreme Court routinely claims to be shackled by history. Writing for the Court, Justice Scalia once insisted that the freedom of speech “is the very product of an interest balancing by the people,” leaving no room for governmental officials, including judges, to assess whether restrictions of speech promote the public good. 325 In a similar vein, the Court recently rejected as “startling and dangerous” an approach to the First Amendment that would allow judges to identify “low-value” speech based on its utility. 326 Instead, it asserted, “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” 327 And just two terms ago, the Court seemed to treat the distinction between content-based and content-neutral restrictions as baked into the First Amendment. 328

This Article has nothing to say about whether the rule against content-based regulations advances the public good, or whether confining low-value speech to traditional categories is a good idea. Those are empirical and value-based inquiries that have little to do with the Founding Era. But the history of speech and press freedoms overwhelmingly disproves the Supreme Court’s insistence that modern doctrines inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

As a natural right, expression was originally subject to regulations that furthered the public good, leading to vibrant and long-running constitutional debates about expressive freedom. Nearly everyone who spoke on the issue agreed that well-intentioned statements of one’s thoughts were constitutionally protected. A few people thought that any governmental efforts to suppress political speech caused more harm than good. But for most, deliberate efforts to mislead the public were a different matter entirely and were deserving of punishment. In sum, opinions were wide-ranging, with arguments cast at different levels of generality. It bears emphasis that, on the whole, natural rights provided only a framework for argument—not a set of determinate legal rights.

The pliability of natural rights thus fostered a dynamic constitutional culture at the Founding. Natural liberty could be restrained, as William Blackstone put it, only when “necessary and expedient for the general advantage of the public.” 329 Whenever natural liberty “is, by the laws of the state, further restrained than is necessary and expedient for the general advantage,” St. George Tucker declared in 1796, “a state of civil slavery commences immediately.” 330 Steeped in this tradition, the Founders virulently contested the scope of all sorts of governmental powers—including the capacity to regulate expression—from the standpoint of policy, all the while casting their arguments in terms of an unchanging original bargain.

Recognizing the contested relationship between natural rights and legal rules at the Founding also has implications that resonate beyond the context of expressive freedom. Scholars often read constitutional phrases like “freedom of speech,” “unreasonable searches and seizures,” and “cruel and unusual punishments” as, in the words of Jack Balkin, “abstract and vague rights provisions.” 331 Indeed, the presence of several open-textured provisions in the Bill of Rights seems to reinforce that the Founders often preferred general constitutional standards over specific constitutional rules. 332 This Article, however, joins other recent scholarship suggesting that many Founding Era legal elites saw none of these rules as being abstract or vague. Rather, in their minds, these provisions simply reaffirmed longstanding features of Anglo-American law.

In the Fourth Amendment context, for instance, Laura Donohue has shown that Founding Era jurists viewed the ban on “unreasonable” searches and seizures as a simple reference to customary legal rules. “[A]t the Founding,” she explains, “there was no such thing as a ‘standard of reasonableness,’ such as has marked the Fourth Amendment discourse since the 1967 case of Katz v. United States .” 333 Rather, Donohue uncovers, unreasonableness meant “‘against reason,’ which translated into ‘against the reason of the common law.’” 334

Along similar lines, John Stinneford persuasively argues that, far from stating a “vague moral command,” the Eighth Amendment rule against “cruel and unusual” punishments actually called for a careful study of the common law. 335 “[T]he best way to discern whether a government practice comported with principles of justice,” Stinneford writes, “was to determine whether it was continuously employed throughout the jurisdiction for a very long time, and thus enjoyed ‘long usage.’” 336

In part, this Article reinforces these arguments. For many Founding Era legal elites, the First Amendment—far from being vague or abstract—imposed discrete legal commands recognized at common law. The First Amendment, in other words, was not designed or originally understood to provide a font of judicially crafted doctrines protecting expressive freedom.

At the same time, the history of the First Amendment complicates the idea that seemingly abstract constitutional rights actually carried more determinate common-law meanings. 337 Many Founders, as this Article demonstrates, forcefully rejected lawyerly assumptions about constitutional interpretation. In this way, the Founders’ virulent contest over the legal implications of expressive freedom muddies the historical accounts offered by Donohue and Stinneford. If Republicans like George Hay were right that answering “a great constitutional question . . . depends, not on cases and precedents furnished by books, but on principles whose origin is to be traced in the law of nature,” 338 that observation resonated far beyond the topic of expressive freedom. 339

A scholarly focus on the indeterminacy of the original First Amendment may thus seem deserved. That emphasis, however, misses a crucial point. As concepts, speech and press freedoms were relatively well defined, even though written in a different language. And perhaps, with a hint of irony for those who seek constitutional stability in original meaning, this lost history reveals our modern dilemma: the proper scope of expressive freedom is left for us to determine.

Volume 133’s Emerging Scholar of the Year: Robyn Powell

Announcing the eighth annual student essay competition, announcing the ylj academic summer grants program.

United States v. Stevens, 599 U.S. 460, 470 (2010); see also District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (“[T]he First [Amendment] . . . is the very product of an interest balancing by the people.”).

1  Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech § 1:11 (2016).

See, e.g. , Wendell Bird, Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign Against Dissent 15-30 (2016); Leonard W. Levy, Emergence of a Free Press 170-71 (1985); Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions , 102 Yale L.J. 907, 919 & n.39 (1993); Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression , 78 B.U. L. Rev . 1275, 1289, 1292 (1998); Leonard W. Levy, On the Origins of the Free Press Clause , 32 UCLA L. Rev. 177, 180, 204 (1984); Melville B. Nimmer, Introduction—Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech? , 26 Hastings L.J. 639, 640-41 (1975); Eugene Volokh, Symbolic Expression and the Original Meaning of the First Amendment , 97 Geo. L.J. 1057, 1079-83 (2009). The term “freedom of expression” was rarely used in the eighteenth century but is used here for simplicity. But see Answer of the Senate of Pennsylvania to Governor Mifflin’s Speech , Dunlap & Claypoole’s Am. Daily Advertiser (Philadelphia), Dec. 14, 1795, at 3 (“The communication of sentiment, with temper and decency, is a right which never should be impaired: Freedom of expression will only be abused by those who wish to conceal, or pervert, the truth.”).

See, e.g. , Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 168 (2012); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 46-47 (1985); Richard A. Primus, The American Language of Rights 73 & n.44 (1999); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 292 (1996).

See, e.g. , George Anastaplo, Reflections on Freedom of Speech and the First Amendment 66 (2007); Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People 34-37 (1960); Akhil Reed Amar, Intratextualism , 112 Harv. L. Rev. 747, 815 (1999).

David A. Anderson, The Origins of the Press Clause , 30 UCLA L. Rev . 455, 487 (1983); see also Stewart Jay, The Creation of the First Amendment Right to Free Expression: From the Eighteenth Century to the Mid-Twentieth Century , 34 Wm. Mitchell L. Rev. 773, 793 (2008) (agreeing with Anderson); Lawrence Rosenthal, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech , 86 Ind. L.J. 1, 17 (2011) (same).

Erwin Chemerinsky, Constitutional Law 1198 (4th ed. 2013); see also, e.g. , Akhil Reed Amar, The Constitution Today: Timeless Lessons for the Issues of Our Era 7 (2016) (“The Sedition Act of 1798 was clearly unconstitutional . . . .”).

Scholars who emphasize the indeterminacy of original meaning typically highlight the clashing views over sedition. See, e.g. , Smolla, supra note 2, at § 1:11. By contrast, those who take sides often argue that the opposing view was not prevalent until the late 1790s. Compare Levy, supra note 3 , at xii (“[T]he theory of freedom of political expression remained quite narrow until 1798 . . . .”), with Anderson, supra note 6 , at 521 (“The Federalists who sought to prevent criticism of government by passing the Sedition Act were not the Framers, nor did they share the Framers’ views.”). For other key works, see Bird, supra note 3 ; Phillip I. Blumberg, Repressive Jurisprudence in the Early American Republic: The First Amendment and the Legacy of English Law (2010); Walter Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal , 1970 Sup. Ct. Rev . 109; David S. Bogen, The Origins of Freedom of Speech and Press , 42 Md. L. Rev . 429 (1983); Hamburger, supra note 3 ; Philip B. Kurland, The Original Understanding of the Freedom of the Press Provision of the First Amendment , 55 Miss. L.J. 225 (1985); William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression , 84 Colum. L. Rev . 91 (1984); David M. Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History , 37 Stan. L. Rev. 795 (1985); and Stephen A. Smith, The Origins of the Free Speech Clause , 29 Free Speech Y.B. 48 (1991).

Geoffrey R. Stone, The Story of the Sedition Act of 1798: “The Reign of Witches , ” in First Amendment Stories 13, 23 (Richard W. Garnett & Andrew Koppelman eds., 2012). For others who emphasize a lack of consensus at the Founding, see, for example, David L. Lange & H. Jefferson Powell, No Law: Intellectual Property in the Image of an Absolute First Amendment 210 (2009); Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel 70 (1986); Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. Ill. L. Rev . 815, 837; Robert H. Bork, Neutral Principles and Some First Amendment Problems , 47 Ind. L.J. 1, 22 (1971); Saul Cornell, Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism , 82 Fordham L. Rev . 721, 748-54 (2013); and Saul Cornell, The People’s Constitution vs. The Lawyer’s Constitution: Popular Constitutionalism and the Original Debate over Originalism , 23 Yale J.L. & Human . 295, 326-34 (2011) [hereinafter Cornell, The People’s Constitution vs. The Lawyer’s Constitution ].

Jonathan Gienapp, Historicism and Holism: Failures of Originalist Translation , 84 Fordham L. Rev . 935, 942 (2015).

4 William Blackstone, Commentaries * 152.

See Wendell Bird, Liberties of Press and Speech: ‘Evidetestnce Does Not Exist To Contradict the . . . Blackstonian Sense’ in Late 18th Century England? , 36 Oxford J. Legal Stud. 1 (2016).

The intellectual foundation of this language was social-contract theory. See Jud Campbell, Republicanism and Natural Rights at the Founding , 32 Const. Comment. 85, 87 (2017 ) (reviewing Randy E. Barnett, Our Republican Constitution: Securing The Liberty And Sovereignty of We the People (2016)). Founding Era discussions of social-contract theory and natural rights were common. See, e.g. , John Adams, A Defence of the Constitutions of Government of the United States of America 6 (Philadelphia, Hall & Sellers 1787); 1 William Blackstone, Commentaries * 47; Alexander Hamilton , The Farmer Refuted (1775) , reprinted in 1 The Papers of Alexander Hamilton 81, 88 (Harold C. Syrett ed., 1961); James Madison, Essay on Sovereignty (1835), in 9 The Writings of James Madison 568, 570 (Gaillard Hunt ed., 1910); Gouverneur Morris, Political Enquiries (1776), in To Secure the Blessings of Liberty: Selected Writings of Gouverneur Morris 5, 9 (J. Jackson Barlow ed., 2012); 1 Zephaniah Swift, A System of the Laws of the State of Connecticut 16 (Windham, John Byrne 1795); Richard Wooddeson, Elements of Jurisprudence: Treated of in the Preliminary Part of a Course of Lectures on the Laws of England 22 (London, T. Payne & Son 1783).

See Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress of the United States of America 811, 822 (Charlene Bangs Bickford et al. eds., 1992) [hereinafter Documentary History of the First Federal Congress] ; Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 The Papers of Thomas Jefferson 131, 132 (Julian P. Boyd ed., 1971); An Old Whig IV , Indep. Gazetteer ( Philadelphia), Oct. 27, 1787, reprinted in 13 The Documentary History of the Ratification of the Constitution 497, 501 (John P. Kaminski & Gaspare J. Saladino eds., 1981) [hereinafter Documentary History of the Ratification] . The Founders sometimes referred to positive rights as adventitious rights or social rights. See The Impartial Examiner 1 , Va. Indep. Chron. ( Richmond ) , Feb. 20, 1788, reprinted in 8  Documentary History of the Ratification, supra , at 387, 390 (1988); [George Logan], Letters Addressed to the Yeomanry of the United States . . . 39 (Philadelphia, Eleazer Oswald 1791); Philanthropos , Newport Herald , June 17, 1790, reprinted in 26 Documentary History of the Ratification , supra , at 1051, 1051 (John P. Kaminski et al. eds., 2013).

Common Sense [Thomas Paine], Candid and Critical Remarks on Letter 1, Signed Ludlow , Pa. J. & Wkly. Advertiser , June 4, 1777, at 1; see also 1 Thomas Rutherford, Institutes of Natural Law 36 (Cambridge, J. Bentham 1754) (“Another division of our rights is into natural and adventitious. Those are called natural rights, which belong to a man . . . originally, without the intervention of any human act.”); Hamburger, supra note 3 , at 919 (“[Americans] understood natural liberty to be the freedom an individual could enjoy as a human in the absence of government.”).

See Campbell, supra note 13, at 92-98.

See id. at 96-98.

See Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 10 (1969); Bernadette Meyler, Towards a Common Law Originalism , 59 Stan. L. Rev . 551, 581 (2006).

See infra Section II.D.

See Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 296-97, 306. As Cornell notes, “the conflict over legal interpretation . . . exist[ed] along a spectrum in which elite culture shaded gradually into a more popular plebian culture.” Id. at 309.

Id. at 306 (quoting [ Benjamin Austin ], Honestus, Observations on the Pernicious Practice of the Law 20 (Boston, Adams & Nourse 1786)).

Scholars have widely noted how methodological disagreements among the Founders can complicate efforts to recover original meanings. See, e.g. , id. at 296-98; Larry Kramer, Two (More) Problems with Originalism , 31 Harv. J.L. & Pub. Pol’y 907, 912-13 (2008); Caleb Nelson, Originalism and Interpretive Conventions , 70 U. Chi. L. Rev . 519, 555-56, 561, 571-73 (2003).

See, e.g. , Alexander Addison, A Charge to the Grand Juries of the County Courts of the Fifth Circuit of the State of Pennsylvania 13 (Vergennes, Samuel Chipman 1799) (arguing that sedition leads to the “greatest of all plagues, the corruption of public opinion”).

See, e.g. , John Thomson , An Enquiry, Concerning the Liberty, and Licentiousness of the Press, and the Uncountroulable Nature of the Human Mind 83 (New York, Johnson & Stryker 1801) (describing the “laws of society”—akin to the proverbial marketplace of ideas—as “fully sufficient to the purpose” of handling malicious falsehoods); Tunis Wortman, A Treatise, Concerning Political Enquiry, and the Liberty of the Press 170 (New York, George Forman 1800) (“Public prosecutions for libels are . . . more dangerous to Society than the misrepresentation which they are intended to punish.”). This view developed among English radicals, whose writings circulated in America. See, e.g. , Richard Price, Observations on the Importance of the American Revolution, and the Means of Making It a Benefit to the World 25 (London, Barlow & Babcock 1784) (arguing that the “evils” of granting civil authority to regulate speech outweigh the benefits); James Burgh, Of the Liberty of Speech and Writing on Political Subjects , in 3 Political Disquisitions 246, 254 (London, Edward and Charles Dilly 1775) (“For if you punish the slanderer , you deter the fair inquirer .”).

Readers need not accept a general distinction between meanings and expected applications in order to recognize my point, which is simply that individuals could simultaneously agree that speaking, writing, and printing were natural rights regulable in the public interest and disagree about whether particular governmental restrictions of speaking and printing promoted the public good. For arguments in favor of a general distinction between meanings and expected applications, see Christopher R. Green, Originalism and the Sense-Reference Distinction , 50 St. Louis U. L.J. 555, 559 (2006); and Keith E. Whittington, Originalism: A Critical Introduction , 82 Fordham L. Rev. 375, 383 (2013).

See infra Section II.A.

See infra Section II.B.

See infra Section II.C.

See, e.g. , Reed v. Town of Gilbert, 135 S. Ct. 2218, 2229 (2015); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 128 (1993) (Kennedy, J., concurring).

United States v. Stevens, 559 U.S. 460, 468-71 (2010).

Id. at 470; see also United States v. Alvarez, 132 S. Ct. 2537, 2544, 2547 (2012) (plurality opinion) (summarizing the same idea, with application to false statements).

McCutcheon v. FEC, 134 S. Ct. 1434, 1449 (2014).

Compare Zechariah Chafee Jr., Freedom of Speech 17-24 (1920) ( insisting that the First Amendment was designed to bar seditious libel prosecutions), with Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 2-3 (1960) ( arguing that historical evidence “points strongly in support” of the conclusion that the First Amendment “left the law of seditious libel in force”) , and Rabban, supra note 8, at 796 ( arguing that Levy’s focus on seditious libel led him to overlook genuine and growing support among the Founders for a greater degree of expressive freedom).

See, e.g. , Vikram Amar, Introduction to The First Amendment Freedom of Speech: Its Constitutional History and the Contemporary Debate 13, 13 (Vikram David Amar ed., 2009); Genevieve Lakier, The Invention of Low-Value Speech , 128 Harv. L. Rev. 2166, 2180-81 (2015); Marc Lendler, “Equally Proper at All Times and at All Times Necessary”: Civility, Bad Tendency, and the Sedition Act , 24 J. Early Republic 419, 426 n.28 (2004).

See Bird , supra note 3, at 77; Lucas A. Powe, Jr., The Fourth Estate and the Constitution: Freedom of the Press in America 47-48 (1991); Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act , 48 Vand. L. Rev . 1539, 1556, 1567-71 (1995); Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment , 88 Nw. U. L. Rev . 1106, 1111-14 (1994); Mayton, supra note 8, at 97, 119.

See supra note 4 (collecting sources).

See supra notes 2 and 9 and accompanying text.

See Hamburger, supra note 3, at 908-11.

Hamburger’s only engagement with this issue is an unilluminating footnote:

[N]atural law was not necessarily the only indication of what was an abridgement of the constitutional right, because a constitution might enumerate a natural right but qualify or supplement its protection of the right. The First Amendment right of free speech and press, for example, was understood to preclude publication censorship . . . . [T]his preference for postpublication restraints was highly compatible with the notion of a physical natural right, but it was not claimed to be derived from natural rights analysis.

Id. at 954 n.130. In a similar vein, David Bogen shows that many Founders viewed the freedom of speech as a natural right, but he offers little account of what that meant. See Bogen, supra note 8, at 453 (“[N]atural rights theory . . . failed to mark the line between protected liberty and punishable license.”). Like Hamburger, Bogen does not explore the place of customary positive rights within a natural-rights framework. See id. at 450-53.

See, e.g. , Thomas B. McAffee, The Bill of Rights, Social Contract Theory, and the Rights “Retained” by the People , 16 S. Ill. U. L.J. 267, 278-79 (1992); see also Levy , supra note 3, at 225 (“The Framers believed that . . . no provision of the Constitution authorized the government to act on any natural rights.”); cf. Heyman, supra note 3, at 1282 (classifying freedom of thought as a right “not subject to legislative regulation for the public good . . . [but] nevertheless limited by the rights of others”). For others who interpret the First Amendment as a categorical ban on federal regulations of expression, see supra note 36 (collecting sources).

See infra notes 114-118 and accompanying text.

See infra notes 290-294 and accompanying text.

See, e.g. , Patterson v. Colorado, 205 U.S. 454, 462 (1907) (providing that the First Amendment prohibits prior restraints on speech but permits “the subsequent punishment of such [speech] as may be deemed contrary to the public welfare”). See generally Crowley v. Christensen, 137 U.S. 86, 89 (1890) (“[T]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.”); Victoria F. Nourse, A Tale of Two Lochners : The Untold History of Substantive Due Process and the Idea of Fundamental Rights , 97 Calif. L. Rev. 751, 752 (2009) (“Today, fundamental rights trump the general welfare, whereas in 1905, under the police power of the state, the general welfare trumped rights.”).

See, e.g. , N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette , Jan. 27, 1790, at 2 (statement of Rep. Rufus King) (“The liberty of uttering our sentiments and giving publicity of our thoughts, might be supposed an evil were it not well guarded against by wholesome laws, which prevents any one man from injuring another.”).

See infra notes 188-189 and accompanying text.

Because of the evidence available, this Article relies on the views of Founding Era elites. References to the Founders, Americans, and so forth, should be read accordingly. Of course, this binary distinction between “elites” and “non-elites” is stylized. See Saul Cornell, Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard , 29 Const. Comment . 383, 388 (2014).

Although “large numbers of Americans spoke about government, liberty and constitutional law on the basis of some shared assumptions about natural rights and the state of nature,” Hamburger, supra note 3, at 915, these speakers may not be representative of the entire Founding generation, see id. at 916.

Perhaps those unfamiliar with natural-rights reasoning would have understood the term as the practical freedom that speakers and publishers exercised at the time of the First Amendment’s ratification—a meaning that would prevent the government from instituting any new restrictions of speech or the press. Without evidence, one scholar posited this idea. See Leonard W. Levy, The Legacy Reexamined , 37 Stan. L. Rev. 767, 769 (1985); cf. James Iredell’s Charge to the Grand Jury of the Circuit Court for the District of Pennsylvania , Claypoole’s Am. Daily Advertiser (Philadelphia), Apr. 11, 1799, reprinted in 3  The Documentary History of the Supreme Court of the United States, 1789-1800 , at 332, 347 (Maeva Marcus et al. eds., 1990) [hereinafter Iredell] (“What might be deemed the Freedom of the Press, if it had been a new subject, and never before in discussion, might indeed admit of some controversy.”). Or perhaps Americans unfamiliar with social-contract theory would have interpreted the First Amendment in light of the Speech and Debate Clause. Yet again, however, historical evidence does not support that view. See infra notes 275-281 and accompanying text.

See infra Part IV. For this reason, this Article cannot refute interpretive arguments based on other methodologies.

Readers may refer to any Supreme Court opinion that mentions history. To be sure, Justice Scalia once asserted that the Constitution’s original meaning “excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.” District of Columbia v. Heller, 554 U.S. 570, 577 (2008). But the Court never demonstrates that elite sources reflect how “ordinary citizens” would have understood the Constitution’s words and phrases, and it regularly relies on highly technical legal sources that were surely unfamiliar to most ordinary citizens. Cf. Lawrence B. Solum, District of Columbia v. Heller and Originalism , 103 Nw. U. L. Rev . 923, 970 (2009) (offering an originalist perspective on the “public meaning” of terms of art). Of course, limiting the relevant public to voters might narrow the linguistic gap between the public and elites, see Mark Tushnet, Heller and the New Originalism , 69 Ohio St. L.J . 609, 611-12 (2008), but that limitation is unwarranted if the relevant public includes non-voting members of the body politic.

See, e.g. , Larry D. Kramer, Madison’s Audience , 112 Harv. L. Rev . 611, 676 (1999); Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion , 103 Harv. L. Rev . 1409, 1415 (1990).

See, e.g. , Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience , 117 Harv. L. Rev . 1765, 1767 nn. 6-8, 1768 (2004) (listing several theories).

See, e.g. , Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution 199 (1996) (“The First Amendment . . . cannot be applied to concrete cases except by assigning some overall point or purpose to the amendment’s abstract guarantee of ‘freedom of speech or of the press.’”).

See Meiklejohn , supra note 5; Cass R. Sunstein, Democracy and the Problem of Free Speech (1993); Ashutosh Bhagwat, The Democratic First Amendment , 110 Nw. U. L. Rev. 1097 (2016 ).

See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Eugene Volokh, In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection , 97 Va. L. Rev. 595 (2011).

See Martin H. Redish, The Value of Free Speech , 130 U. Pa. L. Rev . 591, 593 (1982) (describing the “one true value” of free speech as “individual self-realization”).

In particular, many scholars have noted that preserving republican government was the primary objective for many proponents of speech and press freedoms. See Bhagwat, supra note 55, at 1102 (“[A] broad consensus has emerged over the past half-century regarding the fundamental reason why the Constitution protects free speech: to advance democratic self-governance.”). That account of the Founders’ motives is certainly true. But one goal of this Article is to show that the meanings of speech and press freedoms, as concepts, were not defined by or limited to concerns about preserving republican government.

Gordon S. Wood, The Creative Imagination of Bernard Bailyn , in The Transformation of Early American History: Society, Authority, and Ideology 16, 46 (James A. Henretta et al. eds., 1991).

See G. Edward White, Intellectual History and Constitutional Decision Making , 101 Va. L. Rev . 1165, 1176-77 (2015). American judges, for instance, unanimously upheld sedition prosecutions. See Blumberg , supra note 8, at 145. For twentieth-century developments, see, for example, Lakier, supra note 35; and G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America , 95 Mich. L. Rev . 299 (1996).

See Michael W. McConnell, Time, Institutions, and Interpretation , 95 B.U. L. Rev. 1745, 1777 (2015); John O. McGinnis, The Duty of Clarity , 84 Geo. Wash. L. Rev. 843, 843 (2016).

Plenty of originalists value precedent. See, e.g. , William Baude, Is Originalism Our Law? , 115 Colum. L. Rev . 2349, 2358-59 (2015); see also infra note 307 (collecting sources).

491 U.S. 397 (1989).

530 U.S. 640 (2000).

558 U.S. 310 (2010).

562 U.S. 443 (2011).

See, e.g. , Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 132-49, 255-71 (rev. ed. 2014). This view is ahistorical, see Campbell, supra note 13, at 105-08, but that does not make it “wrong.” Modern constitutional practice ultimately has to be based on normative grounds (or some other assessment of what counts as our law), which may call for only a limited form of historical inquiry. See Whittington, supra note 25, at 400-04 (discussing the relationship between originalism and judicial review).

See, e.g. , Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine , 63 U. Chi. L. Rev. 413, 414 (1996); David A. Strauss, The Ubiquity of Prophylactic Rules , 55 U. Chi. L. Rev . 190, 196-202 (1988).

For different formulations of this two-step process of constitutional adjudication, see, for example, Mitchell N. Berman, Constitutional Decision Rules , 90 Va. L. Rev. 1 (2004); Richard H. Fallon, Jr., Foreword: Implementing the Constitution , 111 Harv. L. Rev . 54 (1997); and Lawrence B. Solum, The Interpretation-Construction Distinction , 27 Const. Comment. 95 (2010).

James Madison, Notes for Speech in Congress (June 8, 1789), in 12 The Papers of James Madison 193, 194 (Charles F. Hobson & Robert A. Rutland eds., 1979).

Thomas Hayter, An Essay on the Liberty of the Press Chiefly as it Respects Personal Slander 18 (London, J. Raymond 1755); see also Freeman’s J.: or, The North-Am. Intelligencer (Philadelphia), Nov. 16, 1785, at 3 (reprinting this passage); Pa. Packet (Philadelphia), Nov. 12, 1785, at 2 (same); Va. Gazette (Williamsburg), May 18, 1776, at 1 (same). For other sources that identify speaking, writing, and publishing as retained natural rights, see, for example, 8 Annals of Cong . 2,148 (1798) (statement of Rep. Harrison Gray Otis) (mentioning the “liberty of writing, publishing, and speaking, one’s thoughts, under the condition of being answerable to the injured party”); 4 Annals of Cong . 918 (1794) (statement of Rep. William Giles) (referring to the “the inalienable privilege of thinking, of speaking, of writing, and of printing”); Congressional Debates (Jan. 21, 1791) (statement of Rep. Fisher Ames), in 14 Documentary History of the First Federal Congress , supra note 14, at 342 (William Charles DiGiacomantonio et al. eds., 1995) (describing the freedom of speech as an “unalienable right”); id. at 340 (statement of Rep. John Vining) (“[N]o law can divest” individuals of the right “of speaking and writing their minds . . . .”); Proposal by [Roger] Sherman to House Committee of Eleven (July 21-28, 1789), in The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 83 (Neil H. Cogan ed., 1997) [hereinafter Complete Bill of Rights] (“Speaking, writing and publishing” are among “certain natural rights which are retained”); Resolution of the Virginia House of Delegates, Va. Gazette, & Gen. Advertiser (Richmond), Jan. 3, 1798, at 2 (referring to the “natural right of speaking and writing freely”); 2 Joseph Priestley, Lectures on History, and General Policy 47 (Philadelphia, P. Byrne 1803) (“[I]n a state of society, every man retain[s] his natural powers of speaking, writing, and publishing his sentiments on all subjects . . . .”); Freeborn American , Bos. Gazette & Country J., Mar. 9, 1767, reprinted in Freedom of the Press from Zenger to Jefferson 95, 95 (Leonard W. Levy ed., 1996) [ hereinafter Freedom of the Press] (“Man, in a state of nature, has undoubtedly a right to speak and act without controul.”); Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 676, 678 (1958) (“[R]ights which it is useless to surrender to the government” include “the rights of thinking, and publishing our thoughts by speaking or writing . . . . ”); and Letter from Thomas Paine to Thomas Jefferson (Mar. 1788), in 13 The Papers of Thomas Jefferson, supra note 14 , at 4, 5 (1956) (“[N]atural rights” include “the rights of thinking, speaking, forming and giving opinions . . . .”). The understanding of speaking, writing, and publishing as natural rights was articulated in seminal discussions about speech and press freedoms during the Zenger controversy. See Argument of Andrew Hamilton, in Freedom of the Press , supra , at 43, 54 (“I beg Leave to insist, That the Right of complaining or remonstrating is natural; And the Restraint upon this natural Right is the Law only, and that those Restraints can only extend to what is false  . . . .”); N.Y. Weekly J . (Nov. 1733), reprinted in Freedom of the Press, supra , at 30 (“No Nation Antient or Modern ever lost the Liberty of freely Speaking, Writing, or Publishing their Sentiments, but forthwith lost their Liberty in general and became Slaves.”).

For instance, one scholar insists that confining regulations of expression to lawful restraints would have been “nothing but a tautology.” Bird , supra note 3, at 11. But this reflects an anachronistic view of freedom. Confining any restraints of natural liberty to known laws passed with the consent of the people and in pursuit of the public good was, according to many eighteenth-century thinkers, the very essence of freedom. See John Phillip Reid, The Ancient Constitution and the Origins of Anglo-American Liberty 38-39 (2005); see, e.g. , The Democratic Society of the City of New-York, to Their Brethren the Citizens of the United States (Jan. 14, 1795), in The Democratic-Republican Societies, 1790-1800: A Documentary Sourcebook of Constitutions, Declarations, Addresses, Resolutions, and Toasts 192, 195 (Philip S. Foner ed., 1976) [hereinafter Democratic-Republican Societies] (“ Civil Liberty is the right of the citizen freely to dispose of his actions subject only to the restraint of the laws . . . . Restraint commences . . . where the liberty of one individual is incompatible with the safety, or happiness of another—it is dictated by justice, and constitutes law.”).

See, e.g. , A Citizen of New-York [John Jay], An Address to the People of the State of New York (Apr. 15, 1788), in 20 Documentary History of the Ratification, supra note 14, at 922, 933 (John P. Kaminski et al. eds., 2004).

See, e.g. , Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 24, 1788) (statement of James Iredell), reprinted in 4 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, at 10-11 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter Debates in the Several State Conventions ]; The Federalist No. 84 (Alexander Hamilton); Remarker, Indep. Chron. , Dec. 27, 1787, reprinted in 5 Documentary History of the Ratification, supra note 14, at 527, 529-30 (John P. Kaminski et al. eds., 1998); see also Gordon S. Wood, The History of Rights in Early America , in The Nature of Rights at the American Founding and Beyond 233, 236-42 (Barry Alan Shain ed., 2007) [hereinafter The Nature of Rights] (describing the development of this view in England and America).

See Herbert J. Storing, What the Anti-Federalists Were For 69-70 (Murray Dry ed., 1981); Jack N. Rakove, The Dilemma of Declaring Rights , in The Nature of Rights , supra note 76, at 181, 193-94.

Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 The Papers of James Madison, supra note 72, at 350, 351 (Robert A. Rutland et al. eds., 1973).

Letter from Samuel Chase to Richard Henry Lee (May 16, 1789), in 15 Documentary History of the First Federal Congress, supra note 14, at 565, 565 (Charles Bangs Bickford et al. eds., 2004); see also The Massachusetts Convention (Jan. 23, 1788) (statement of Samuel Thompson), in 6 Documentary History of the Ratification, supra note 14, at 1312, 1317 (John P. Kaminski et al. eds., 2000) (“[W]here is the bill of rights which shall check the power of this Congress, which shall say, thus far shall ye come and no farther. ”).

Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 659, 659 (1958).

See Campbell, supra note 13, at 107-08; see also infra notes 290-294 and accompanying text.

Although not explored in this Article, other parts of the First Amendment also protected fundamental positive rights that furthered the natural right of expressive freedom. The ancient right to petition, for instance, was a procedural device through which individuals and groups could seek redress of grievances with accompanying “protect[ion] from formal political retaliation by governmental authorities.” Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right To Petition , 66 Fordham L. Rev . 2153, 2202 (1998). The right of peaceable assembly similarly barred prosecutions for peaceable public meetings, although its broader implications were contested. See Saul Cornell, “To Assemble Together for Their Common Good”: History, Ethnography, and the Original Meanings of the Rights of Assembly and Speech , 84 Fordham L. Rev . 915, 928-30 (2015); see also J ohn D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 21-29 (2012) (discussing the history of the freedom of assembly in the Founding Era).

See Campbell, supra note 13, at 87.

Id. at 87-88.

See, e.g. , Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact 74-75 (1974); John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights 88-90 (1986); James Wilson, Of the Natural Rights of Individuals , in 2 Collected Works of James Wilson 1053, 1055-56 (Kermit L. Hall & Mark David Hall eds., 2007).

When Federalists came under fire for not enumerating rights, however, they mercilessly mocked their Anti-Federalist opponents by pointing out the limitless breadth of natural liberty. See Philip A. Hamburger, Trivial Rights , 70 Notre Dame L. Rev . 1, 20-30 (1994).

See infra notes 275-281 and accompanying text.

Anderson, supra note 6, at 487 (citing Levy , supra note 34, at 5-6); accord Jay, supra note 6, at 793; Rosenthal, supra note 6, at 17.

See supra notes 14-15, 83-86 and accompanying text.

See supra note 73 and infra notes 93-98 (collecting sources).

Pa. Const . of 1776, art. 12; Vt. Const. of 1777, ch. 1, art. 14.

Proposal by Sherman to House Committee of Eleven, July 21-28, 1789, in Complete Bill of Rights, supra note 73, at 83.

Freeborn American , supra note 73, at 95.

Alexander Addison, Analysis of the Report of the Committee of the Virginia Assembly, on the Proceedings of Sundry of the Other States in Answer to their Resolutions 44 (Philadelphia, Zachariah Poulson Jr. 1800).

John Taylor, An Inquiry into the Principles and Policy of the Government of the United States 473 (Fredericksburg, Green & Cady 1814).

Richard Price, Observations on the Importance of the American Revolution, and the Means of Making It a Benefit to the World 21-22 (London, T. Cadell 1784).

Eteocles, An Essay on the Freedom of Speech , Md. Gazette (Annapolis), Nov. 24, 1780, at 180.

Addison, supra note 23, at 4.

See, e.g. , James Alexander, Letter to the Editor, Pa. Gazette (Philadelphia), Nov. 24, 1737, reprinted in Freedom of the Press , supra note 73, at 62, 66 (referencing “freedom of speech and liberty of the press” as “natural rights”).

Hayter , supra note 73, at 18; see also Addison, supra note 23, at 4 (“We communicate our sentiments by words spoken, written, or printed, or by pictures or other signs.”); William Bollan, The Freedom of Speech and Writing upon Public Affairs, Considered 3-4 (London, S. Baker 1766) (discussing “speech and writing, or printing, a species of writing invented for the more expeditious multiplication of copies, both being modes of presenting to the eye what speech conveys to the ear”).

See, e.g. , 8 Annals of Cong. 2147-48 (1798) (statement of Rep. Otis) (distinguishing “the liberty of writing, publishing, and speaking” from “the freedom of the press”).

See 12 The Oxford English Dictionary 411 (J.A. Simpson & E.S.C. Weiner eds., 2d. ed. 1989); see also James Sullivan, Dissertation upon the Constitutional Freedom of the Press in the United States 10 (Boston, Joseph Nancrede 1801) (“The conventions of the states, and the Congress of the United States, use the word press as descriptive of the free communication of ideas and sentiments, by the art of printing.”). See generally Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today , 160 U. Pa. L. Rev. 459 (2012).

See, e.g. , 8 Annals of Cong. 2167-68 (1798) (statement of Rep. Harper) (decrying the “licentious abuse” of the liberty of the press, thus alluding to the natural-rights distinction between liberty and license —i.e., the abuse of liberty); Nathaniel Chipman, Sketches of the Principles of Government 152 (Rutland, Vt., J. Lyon 1793) (“Let there be no restraint upon the liberty of the Press, no check upon public or private discussion, but what is imposed by the manners, morals, taste, and good sense of the age.”).

The Craftsman No. 121 , in 3 The Craftsman 274, 274 (Caleb D’Anvers ed., London, R. Francklin 1731) (emphasis omitted); see American Intelligence , Indep. Gazetteer (Philadelphia), Jan. 5, 1789, at 3 (“Freedom of speech, which is nothing more than the freedom of press, is the great bulwark of liberty . . . .”). Other authors treated the freedom of speech as synonymous with “the liberty of individuals to communicate their thoughts to the public.” Of the Liberty of the Press and Elections , London Evening Post , Oct. 29, Nov. 9, Nov. 14, 1754, reprinted in 16 Scots Magazine 518-19 (1754). As this passage illustrates, “liberty” and “freedom” were typically used interchangeably.

See Hamburger, supra note 3, at 922-30.

See id. at 930 .

See David Hume , Of the Original Contract , in 2 Essays and Treatises on Several Subjects 287, 289-91 (London, A. Millar 1760); see also Rutherford, supra note 15, at 10 (“It is therefore the law of [man’s] nature, that he should live in society with others of his own species” and “should join with them in a common interest . . . as to labour with them for a general good.”).

Chipman, supra note 103, at 75.

Wilson, supra note 85, at 1056.

Id. at 1055-56 (emphasis added).

See Campbell, supra note 13, at 88; see, e.g. , John Locke, Second Treatise of Government §§ 96-97 (1690), reprinted in T wo Treatises of Government and a Letter Concerning Toleration 142 (Ian Shapiro ed., 2003); Theophilus Parsons , Essex Result , in Memoir of Theophilus Parsons 359, 366 (Boston, Ticknor & Fields 1861). Although typically cast in historical terms, the social contract was a theoretical idea used to frame the relationship between individuals and their government. See Campbell, supra note 13, at 87 n.10, 89 n.19.

Mass. Const . of 1780, pmbl.

See, e.g. , Adams , supra note 13, at 6; 1 William Blackstone, Commentaries * 52; Madison, supra note 13, at 570. In English and colonial thought, this agreement was often described as an “original contract” between the people and the monarch. See Reid , supra note 85, at 132-34. Founding Era writers sometimes merged the social contract and constitution . See Philip Hamburger, Law and Judicial Duty 98-99, 294 (2008) ; see, e.g. , Sullivan, supra note 102 , at 11 (“In the social compacts, which we denominate constitutions . . . .”). This conflation was common in the United States after independence, see Thad W. Tate, The Social Contract in America, 1774-1787: Revolutionary Theory as a Conservative Instrument , 22 Wm. & Mary Q . 375, 376 (1965), likely because the notion of an “original contract” between the people and a monarch became obsolete. But American constitutional theorists maintained the distinction between a social contract and a constitution. See, e.g. , Adams , supra note 13, at 6; Madison, supra note 13, at 570; see also 3 John Phillip Reid, Constitutional History of the American Revolution 114 (1991) (“American Whigs, in contrast to later historians, seldom compound[ed] or confuse[d] the two contracts.”); Reid , supra note 85, at 133-34 (noting eighteenth-century political writers’ distinctions between the social contract and the original contract).

See Campbell, supra note 13, at 92-94; see, e.g. , Joseph Priestley, An Essay on the First Principles of Government, and on the Nature of Political, Civil, and Religious Liberty 12-13 (2d ed., London, J. Johnson 1771) (“It must necessarily be understood, therefore, whether it be expressed or not, that all people live in society for their mutual advantage; so that the good and happiness of the members, that is the majority of the members of any state, is the great standard by which every thing relating to that state must finally be determined.”); John Witherspoon , Lectures on Moral Philosophy , in The Selected Writings of John Witherspoon 191 (Thomas P. Miller ed., 1990) (“[I]t is certain that the public good has always been the real aim of the people in general in forming and entering into any society.”). When Jefferson recommended five works on “the organization of society into civil government . . . according to the rights of nature,” Letter from Thomas Jefferson to John Norvell (June 11, 1807), in 5 The Writings of Thomas Jefferson 90, 90-91 (H. A. Washington ed., 1853), all of his recommendations prioritized the public good. See Chipman , supra note 103, at 174-75 (noting that retained natural rights “must be in a just compromise with the convenience and happiness of others, agreeably to the laws of social nature, and such combinations and regulations, as are clearly derived from those laws”); John Locke , Second Treatise of Government § 130 (1690), reprinted in John Locke , supra note 111 , at 156 (noting that individuals surrender “as much . . . natural Liberty . . . as the Good, Prosperity, and Safety of the Society shall require”); The Federalist No. 43, at 297 (James Madison) (Jacob E. Cooke ed., 1961) (“[T]he safety and happiness of society are the objects at which all political institutions aim.”); Priestley , supra , at 57 (“[A]ll claims of individuals inconsistent with the public good are absolutely null and void.”); Algernon Sidney, Discourses Concerning Government 255 (2d ed., London, J. Darby 1704) (stating that “the publick Good . . . is the end of all . . .  Government”) (emphasis added).

The Federalist No. 43, supra note 114, at 297 (James Madison); see also supra note 114 and accompanying text (discussing the public good).

See, e.g. , Alexander Hamilton, Opinion on the Constitutionality of the Bank , in 8 The Papers of Alexander Hamilton, supra note 13, at 91 (1965).

See, e.g. , The Federalist No. 37, supra note 114, at 239 (James Madison) (noting “the necessity of sacrificing private opinions and partial interests to the public good”); James Wilson, Of Citizens and Aliens, in 2 Collected Works of James Wilson, supra note 85, at 1038, 1043 (“By the will and by the interest of the community, every private will and every private interest must be bound and overruled.”); see also Campbell, supra note 13, at 93 n.41 (collecting other sources).

Campbell, supra note 13, at 94 (emphasis removed).

1 William Blackstone, Commentaries *125 (emphasis added); see also Hamburger, supra note 3, at 931 n.70 (collecting sources).

1 Zephaniah Swift, A Digest of the Laws of the State of Connecticut 15 (New Haven, S. Converse 1822); see also New York Ratification Convention Debates (June 25, 1788) (statement of Melancton Smith), in 22 Documentary History of the Ratification, supra note 14, at 1877, 1879 (John P. Kaminski et al. eds., 2008) (“What is government itself, but a restraint upon the natural rights of the people?”).

Parsons, supra note 111, at 366 (emphasis added).

The Federalist No. 84 , supra note 114, at 578 (Alexander Hamilton) (emphasis added); see also, e.g. , Massachusetts Ratification Convention Debates (Jan. 23, 1788) (statement of Theophilus Parsons), in 6 Documentary History of the Ratification, supra note 14, at 1324 (John P. Kaminski et al. eds., 2000) (“ [T]he people divest themselves of nothing.”).

This confusion is most apparent in the view that natural rights were categorical exclusions of regulatory authority. See sources cited supra note 41. For an illuminating effort to trace and unravel much of the confusion, see Dan Edelstein, Early-Modern Rights Regimes: A Genealogy of Revolutionary Rights , 3 Critical Analysis L. 221 (2016).

Chipman , supra note 103, at 117.

Letter from Thomas Jefferson to Francis W. Gilmer (June 7, 1816), in 15 Writings of Thomas Jefferson 23, 24 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905).

For a discussion of how individuals could “retain” their natural rights in a social contract but consent to certain restrictions of those liberties under law, see Campbell, supra note 13, at 96-98.

Chipman , supra note 103, at 74.

Id. at 175 (emphasis added); see also Supplement to Max Farrand’s The Records of the Federal Convention of 1787 , at 183 (James H. Hutson ed., 1987) (“[W]e are not working on the natural rights of men not yet gathered into society, but upon those rights, modified by society . . . .” (quoting Nathaniel Chipman)) .

Chipman , supra note 103, at 175 (emphasis added).

James Wilson, On the History of Property , in 1 Collected Works of James Wilson, supra note 85, at 387.

Wilson, supra note 85, at 1056 (emphasis added).

See Addison, supra note 94, at 46 (“[T]he liberty of conscience cannot be modified, and the liberty of the press cannot be abridged, by authority of the United States.”); Thomas Jefferson, Jefferson’s Opinion on the Constitutionality of the Residence Bill (July 15, 1790), in 17 The Papers of Thomas Jefferson, supra note 14, at 194, 195-97 (1965) (using the phrase “abridged or modified,” and treating “modified” as synonymous with “regulated in [its] exercise by law”). In the late 1790s, some Republicans elided the inherent limits on expressive freedom imposed by natural law and social obligation, thus leading to the view that any regulation of expression was an abridgment of the freedom of speech. See St. George Tucker , View of the Constitution of the United States (1803), reprinted in View of the Constitution of the United States with Selected Writings 91, 386 (1999).

1 William Blackstone, Commentaries * 125.

Hayter , supra note 73, at 8, 18.

Freeborn American , supra note 73, at 95; see Tenax, To the People of Pennsylvania , The Freeman’s Journal: or, the North-American Intelligencer , Oct. 30, 1782, at 1; William Livingston, Of the Use, Abuse, and Liberty of the Press , The Indep. Reflector or Wkly. Essays on Sundry Important Subjects , Aug. 30, 1753, reprinted in Freedom of the Press , supra note 73, at 75, 79.

See, e.g. , Jacob Rush, The Nature of an Oath Stated and Explained , in Charges, and Extracts of Charges, on Moral and Religious Subjects 33, 44 (Philadelphia, 1804) (defending bans on profane swearing because it “lessen[s] that awe and reverence of the Supreme Being, which is one of the strongest guards against perjury; and consequently be in a high degree, injurious to society”). Others recognized that disrupting the “peace and order of society” was grounds for restricting publications, even without directly violating the rights of others. See Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 330 n.* (Pa. 1788); cf. Letter from Thomas Jefferson to James Madison (Aug. 28, 1789), in 15 The Papers of Thomas Jefferson, supra note 14, at 364, 367 (1958) (endorsing restrictions of speech “affecting the peace of the confederacy with foreign nations”). Occasionally, writers worried that a general declaration of press freedom might be construed to “extend to the justification of every possible publication .” America [Noah Webster], To the Dissenting Members of the Late Convention of Pennsylvania , N. Y. Daily Advertiser , Dec. 31, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 484, 487 (John P. Kaminski et al. eds., 2003); see also Hamburger, supra note 3, at 936 n.83; cf. N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette , Jan. 27, 1790, at 2 (statement of Rep. Samuel Jones) (“[H]e hoped that something might be done, if it were possible, to discriminate between the liberty and the licentiousness of the press. The amendment now proposed would be nugatory, as something similar thereto was already included in the constitution. Unless it went a little farther, it appeared to him as if this amendment would not leave it in the power of the legislature to make any law even to punish the injuries that might be done to individuals by the indiscriminate publication of libels.”). But these sources do not indicate that existing legal privileges actually extended that far or that the Founders wanted to extend them that far.

See Heather S. Nathans, Early American Theatre from the Revolution to Thomas Jefferson: Into the Hands of the People 37-70 (2003).

See, e.g. , Smith v. California, 361 U.S. 147, 157 (1959) (Black, J., concurring); Bird , supra note 3, at 27, 112, 461.

Priestley, supra note 114, at 57. Priestley emphasized that this inquiry depended on empirical assessments, not purely abstract reasoning. Id. at 58 .

Addison , supra note 23, at 10.

See, e.g. , 10 Annals of Cong . 925 (1801) (statement of Rep. Samuel Dana) (“[T]hough upon general principles, truth may be said to be an antidote to falsehood, truth does not always make its appearance in time to prevent the evil intended by the evil-disposed.”).

Sullivan , supra note 102, at 21-22. Sullivan, despite being a Republican, defended the constitutionality of the Sedition Act. See id.

10 Annals of Cong . 931 (1801) (statement of Rep. John Rutledge Jr.); see, e.g. , Addison, supra note 94, at 42-43.

E[lizabeth] P[riestley], On the Propriety and Expediency of Unlimited Enquiry , in Thomas Cooper, Political Essays 62, 62 (Thomas Cooper ed., Philadelphia, 2d ed. 1800). For a brief introduction to this essay, see Eugene Volokh, Elizabeth Ryland Priestley, Early American Author on Free Speech , 4 N .Y.U. J.L. & Liberty 382 (2009).

P[riestley], supra note 148, at 63.

Id. at 63-64; see also, e.g. , 10 Annals of Cong . 928 (1801) (statement of Rep. Benjamin Huger) (“[S]o nice and delicate were the shades of distinction between the licentiousness of the press, and a necessary freedom of discussion, that it was upon the whole better perhaps . . . to leave the measures of Government and its Administration entirely open to investigation and animadversion, without attempting to repress the eccentricities and exuberances of public discussion by even an ideal restraint.”).

See, e.g. , 10 Annals of Cong . 923 (1801) (statement of Rep. Joseph Nicholson).

To be sure, the doctrinal conclusions that Republicans reached were often categorical, but their pre-doctrinal understandings of expressive freedom usually were not. See, e.g. , George Hay, An Essay on the Liberty of the Press 27- 28 (Richmond, Samuel Pleasants, Jr. 1803) (concluding that publications on “matters of public concern” were immune from punishment because “the point at which freedom of enquiry ends and licentiousness begins, must remain forever unknown”). For a narrower interpretive argument that did take a categorical form, see infra Section II.B. Republicans in the late 1790s also wholly denied federal power over expression based on a novel interpretation of the First Amendment. See infra Section III.B; see also Jud Campbell, The Invention of First Amendment Federalism (Sept. 10, 2017) (unpublished draft) (on file with author).

Tenax, supra note 139, at 1, 2.

Id. Though unattributed, this language was drawn directly from Blackstone. See 4  William Blackstone, Commentaries *152 (“[T]he disseminating, or making public, of bad sentiments, destructive of the ends of society is the crime which society corrects.”).

Tenax, supra note 139, at 2; see also, e.g. , Sullivan , supra note 102, at 12 (drawing the same distinction between oral and written communication).

Confusingly, the Founders sometimes referred to inalienable rights in an entirely different sense—namely, rights that could not be surrendered to the control of a monarch. See Campbell, supra note 13, at 96-98.

Chipman , supra note 103, at 174.

See N. H. Const . of 1784, pt. 1, art. IV ; Parsons , supra note 111, at 366, 371; Witherspoon , supra note 114, at 405, 408; see also Jack N. Rakove, The Madisonian Theory of Rights , 31 Wm. & Mary L. Rev. 245, 260 (1990); Barry A. Shain, Rights Natural and Civil in the Declaration of Independence , in The Nature of Rights, supra note 76, at 116, 119.

See An Eastern Layman, To The Publick , Va. Gazette ( Williamsburg ) , Aug. 14, 1779, at 1.

4 Annals of Cong . 934 (1794) (statement of Rep. James Madison); see also, e.g. , Thomas Jefferson, A Bill for Establishing Religious Freedom (1779), in 2 The Papers of Thomas Jefferson, supra note 14, at 545, 546 (1950) (noting that “the opinions of men are not the object of civil government, nor under its jurisdiction”); Oliver Ellsworth, A Landholder No. 7 (Dec. 17, 1787), reprinted in 14 Documentary History of the Ratification, supra note 14, at 448, 451 (John P. Kaminski et al. eds., 1983) (“Civil government has no business to meddle with the private opinions of the people.”); Resolutions Adopted Upholding Freedom of Speech, Writing, and Publishing, Dec. 17, 1794, reprinted in Democratic-Republican Societies , supra note 74 , at 148, 148-49 (“[T]he freedom of opinion is a right inherent in nature, and never was intended to be surrendered to government.”).

See, e.g. , Thomas Cooper, A Treatise on the Law of Libel, at ix-x, xxii-xxiii (1830); Thomson , supra note 24, at 11, 13-14, 18-19.

John Locke, An Essay Concerning Human Understanding 119 (A.D. Woozley ed., Meridian Books 1969) (1690).

Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue: In Two Treatises 185 (Knud Haakonssen ed., Liberty Fund 2004) (1726).

James Madison, Memorial and Remonstrance against Religious Assessments , reprinted in 8 The Papers of James Madison , supra note 72, at 295, 299 (Robert A. Rutland et al. eds., 1973).

The Founders thus referred interchangeably to the freedom to express “sentiments,” see, for example, Pa. Const. of 1776, ch. 1, §  12, and “thoughts and opinions,” Pa. Const. of 1790, art. IX, §  7. To the extent that statements of opinion received broader protection than statements of fact , it was because of a duty to tell the truth. See Rutherford, supra note 15, at 295 (“[U]nlawful lyes [include] . . . not only such falshoods, as will directly injure a man, or hinder his innocent benefit; but all such falshoods likewise, as are inconsistent with that tacit consent to tell him the truth.”).

See, e.g. , Thomson , supra note 24, at 11-12 (“[M]en should be allowed to express those thoughts, with the same freedom that they arise. In other words—speak, or publish, whatever you believe to be truth .”); Albert Gallatin , The Speech of Albert Gallatin, a Representative from the County of Fayette, in the House of Representatives of the General Assembly of Pennsylvania , reprinted in 3 The Writings of Albert Gallatin 1, 6 (Henry Adams ed., 1879) (“Whether the opinion be right or wrong, as long as it is only an opinion, everybody has a right to express it.”). Alexander Addison drew a distinction between thought and speech , but he also, following Blackstone, limited his endorsement of speech restrictions to “bad sentiments.” See Addison , supra note 23, at 10 (“[L]iberty of private sentiment is still left; the disseminating or making public of bad sentiments, destructive of the ends of society, is the crime which society corrects.”).

Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of Thomas Jefferson , supra note 14, at 676, 678 (1958); see also Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 The Papers of Thomas Jefferson , supra note 14, at 131, 132 (noting “an universal and almost uncontroverted position in the several states, [is] that the purposes of society do not require a surrender of all our [natural] rights”). Notably, Jefferson did not categorically reject governmental authority to punish malevolent expression. See Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 The Papers of Thomas Jefferson , supra note 14, at 440, 442 (1956) (“A declaration that the federal government will never restrain the presses from printing any thing they please, will not take away the liability of the printers for false facts printed.”).

Congressional Debates (Jan. 21, 1791) (statement of Rep. John Vining), in 14 Documentary History of the First Federal Congress , supra note 14, at 340 (William Charles DiGiacomantonio et al. eds., 1995). This debate occurred before the First Amendment was formally ratified, but this fact evidently made little difference to the members of the First Congress. See also Congressional Debates (Feb. 11, 1790) (statement of Rep. Elias Boudinot), in 12 Documentary History of the First Federal Congress, supra note 14 , at 288 (Helen E. Veit et al. eds., 1994) (“[I]t has been so lately contended, and settled, that the people have a right to assemble and petition for redress of grievances.”).

Congressional Debates (Jan. 21, 1791) (statement of Rep. Fisher Ames), in 14 Documentary History of the First Federal Congress , supra note 14, at 342 (William Charles DiGiacomantonio et al. eds., 1995).

Id. Vining and Ames were opposing a proposal to prevent tax collectors “from interfering, either directly, or indirectly, in elections, further than giving their own votes, on penalty of forfeiting their offices.” Id. at 339 (statement of Rep. James Jackson). Some representatives enthusiastically supported the proposal, suggesting that it ought to be applied to other governmental officials, see id. at 340-41 (statement of Rep. Elbridge Gerry); id. at 341 (statement of Rep. John Laurance); id. at 342 (statement of Rep. Roger Sherman), thus protecting “the freedom of elections” from official interference, id. at 341 (statement of Rep. Michael Stone). The law did not prohibit speech, some proponents of the bill noted, because it merely placed a condition on office holding, see, e.g. , id. at 340 (statement of Rep. Egbert Benson), although Roger Sherman advocated a broader ban on “the arts of electioneering,” id. at 339-40 (statement of Rep. Roger Sherman). The House ended up rejecting the measure.

Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 325 (Pa. 1788); see also Addison, supra note 94, at 50 (“If a man willfully, maliciously, and with intent to defame, publish an opinion not supported by fact, it is an offense.”); James Wilson, Of the Nature of Crimes; and the Necessity and Proportion of Punishments , in 2 Collected Works of James Wilson, supra note 85, at 1087, 1090 (“The law of nature, it is admitted on all hands, measures crimes by the intention, and not by the event.”); Extract from a Charge . . . by the Honorable Thomas M’Kean, Chief Justice of the Supreme Court, with the unanimous approbation of the other Judges , in Pa. Packet (Philadelphia), Apr. 19, 1785, at 3 (“Men therefore have only to take care in their publications, that they are decent, candid and true, that they are for the purpose of reformation and not of defamation, and that they have an eye solely to the public good.”) .

8 Annals of Cong . 2097 (1798) (statement of Rep. John Allen).

Id. at 2098; see also id. (mentioning “liberty of the press and of opinion”).

10 Annals of Cong . 917 (1801) (statement of Rep. Jonas Platt); see, e.g. , H.R. Rep. No. 5-110, at 183 (1799); Addison, supra note 94, at 50; Iredell, supra note 49, at 348.

Stone, supra note 9, at 16. This point is widely recognized, though any effort to appreciate Federalist motives must at least grapple with the ongoing tumult in France. See Kathryn Preyer, United States v. Callender : Judge and Jury in a Republican Society , in Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789 , at 173, 187 (Maeva Marcus ed., 1992) (“Only present-mindedness or lack of imagination leads us to dismiss casually [Federalist] fears as paranoia.”). The Federalist effort to reauthorize the Sedition Act in 1801 further complicates this standard historical account. For a penetrating review of Federalist thought, see Lendler, supra note 35, at 419-25.

The Dissent of the Minority of the House of Representatives of the Commonwealth of Pennsylvania, from the Address to the President of the United States, Adopted by Said House, December, 1798 , at 4 (Philadelphia, 1799).

The Independant (Dec. 11, 1798), Times & Alexandria Advertiser , Dec. 15, 1798; see also 10 Annals of Cong . 922 (1801) (statement of Rep. Joseph Nicholson) (“It was and might be further urged, that the act was only aimed at false and malicious libels, tending to defame the Government. He granted it; but who were to be the judges?”).

Thomson , supra note 24, at 25. Later, Thomson made a broader argument against regulations of expression. See id. at 81-84; see also, e.g. , John Page, An Address to the Freeholders of Gloucester County 15 (Richmond, John Dixon 1799) (describing the Sedition Act as “ unjust as well as unconstitutional ” because it applied to those who criticized the government “patriotically, and conscientiously, and constitutionally”).

To be sure, Federalists generally preferred deferential rather than populist politics, and they abhorred the Democratic-Republican societies in the mid-1790s that claimed to speak on behalf of the people. But contrary to some portrayals, see James P. Martin, When Repression Is Democratic and Constitutional: The Federalist Theory of Representation and the Sedition Act of 1798 , 66 U. Chi. L. Rev . 117, 134-35 (1999), these ideas did not come close to a view that individuals could or should be barred from discussing public affairs or criticizing the government in good faith, see Richard Buel Jr., Securing the Revolution: Ideology in American Politics , 1789-1815, at 93-112, 128-35, 244-61 (1972); Richard Buel Jr., Freedom of the Press in Revolutionary America: The Evolution of Libertarianism, 1760-1820 , in The Press and the American Revolution 59, 89 (Bernard Bailyn & John B. Hench eds., 1981).

Addison, supra note 94, at 42; see also 10 Annals of Cong . 933 (1801) (statement of Rep. John Rutledge, Jr.) (“[E]very man has the privilege of expressing unreservedly whatever he thinks on political subjects.”).

The Trial of the Seven Bishops (1688) (opinion of Richard Allibond), in 12 A Complete Collection of State Trials 183, 428 (London, T.B. Howell ed., 1816). For English statements against this view, see, for example, Jean Louis de Lolme, The Constitution of England, or An Account of the English Government 280 (London, T. Spilsbury 1775) (“[T]he English constitution . . . has allotted to the people themselves the province of openly canvassing and arraigning the conduct of those who are invested with any branch of public authority; and . . . has thus delivered into the hands of the People at large, the exercise of the Censorial power.”); and [Thomas Gordon], Letter No. 15 (Feb. 4, 1720), in 1 John Trenchard & Thomas Gordon, Cato’s Letters: or, Essays on Liberty, Civil and Religious, and Other Important Subjects 110, 111 (Ronald Hamowy ed., 1995) (“That men ought to speak well of their governors, is true, while their governors deserve to be well spoken of; but to do publick mischief, without hearing of it, is only the prerogative and felicity of tyranny: A free people will be shewing that they are so, by their freedom of speech.”). For similar statements by Supreme Court justices, see John Blair’s Charge to the Grand Jury of the Circuit Court for the District of Delaware (Oct. 27, 1794), in 2 The Documentary History of the Supreme Court of the United States, 1789-1800, supra note 49 , at 485, 489 (Maeva Marcus ed., 1988) (“[W]hile men pay an external obedience to the laws, they have a right to think of them as they please, and even beyond this, to express their opinion decently, yet strongly, as a mean of obtaining an alteration . . . .”); Draft of John Jay’s Charge to the Grand Jury of the Circuit Court for the District of Virginia (before Apr. 22, 1793), in 2 Documentary History of the Supreme Court of the United States, 1789-1800 , supra note 49 , at 359, 364 (Maeva Marcus et al. eds., 1990) (“As free Citizens we have a Right to think and speake our Sentiments . . . in Terms . . . explicit plain and decorous.”); and Wilson, supra note 85 , at 1046 (stating that every “citizen under a free government has a right to think, to speak, to write, to print, and to publish freely, but with decency and truth, concerning publick men, publick bodies, and publick measures”). An enormous literature addresses the political controversies in the seventeenth and eighteenth centuries from which this freedom emerged. See, e.g. , Bogen, supra note 8 , at 442-44, 446; Mayton, supra note 8 , at 102-08; Michael E. Stevens, Legislative Privilege in Post-Revolutionary South Carolina , 46 Wm. & Mary Q. 71, 71-73 (1989). See generally Fredrick Seaton Siebert, Freedom of the Press in England 1476-1776: The Rise and Decline of Government Controls (1952).

For earlier discussions of the truth defense, see , for example, Letter from John Adams to William Cushing (Mar. 7, 1789), in Freedom of the Press , supra note 73, at 152, 153; Letter from John Marshall to Archibald Stuart (May 28, 1794), in 2  The Papers of John Marshall 267, 268 (Charles T. Cullen & Herbert A. Johnson eds., 1977). For a discussion of a famous controversy in New York over the truth defense, see Kate Elizabeth Brown, Rethinking People v. Croswell : Alexander Hamilton and the Nature and Scope of “Common Law” in the Early Republic , 32 L. & Hist. Rev . 611 (2014). Some judges thought that “a defendant could establish the truth of the publication only to show that he lacked the requisite malicious intent.” David Jenkins, The Sedition Act of 1798 and the Incorporation of Seditious Libel into First Amendment Jurisprudence , 45 Am. J. Legal Hist. 154, 192 (2001); see, e.g. , id. at 198-99 (describing the views of James Kent and Joseph Story).

H.R. Rep. No. 5-110, at 183 (1799); see 10 Annals of Cong . 92 0-21 (1801) (statement of Rep. Roger Griswold). Notably, some Federalists in January 1801 still held out hope that the presidential election would eventually swing their way after an impending deadlock between Jefferson and Burr. See James Roger Sharp, The Deadlocked Election of 1800: Jefferson, Burr, and the Union in the Balance 139-41 (2010).

Lakier, supra note 35, at 2180; see sources cited supra note 35. The few scholars who have noted possible differences between speech and press rights either have yet to illuminate their relationship, see, e.g. , Anderson, supra note 6, at 490 & n.211, or have insisted that the freedom of speech was derived from the legislative privilege of speech and debate, see sources cited supra note 4.

See, e.g. , 8 Annals of Cong. 2148 (1798) (statement of Rep. Harrison Gray Otis) (“[T]he liberty of the press is merely an exemption from all previous restraints.”).

See, e.g. , Addison, supra note 23, at 4 (“We communicate our sentiments by words spoken, written or printed, or by pictures or other signs.”); see also Volokh, supra note 3, at 1059 (“The equivalence of symbolic expression and verbal expression is consistent with the First Amendment’s original meaning.”). The fact that expressive and non-expressive aspects of natural liberty were both subject to regulation in the promotion of the public good negated the need for a distinction between “speech” and “conduct.” Cf. Frederick Schauer, Speech and “Speech”—Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language , 67 Geo. L.J. 899, 902-03 (1979) (“In order that the first amendment be applied effectively to carve out a category of activity for special protection, consideration must be given to the meaning of the word ‘speech’ . . . .”). Some Founders denounced theater bans, for instance, as obstructing “the natural right of every freeman to dispose of his time and money, according to his own taste and disposition, when not obnoxious to the real interests of society,” without any mention of the expressiveness of theater performance. To the Honorable the General Assembly of Pennsylvania, the Subscribers Being a Committee of the Dramatic Association . . . , Pa. Packet (Philadelphia), Feb. 17, 1789, at 3. Moreover, theater supporters emphasized the permissibility of governmental regulation to promote the public good. See, e.g. , Arguments in Favour of the Drama , Pa. Packet (Philadelphia), Feb. 17, 1789, at 3 (removing a ban on theater would still permit theaters to “be regulated,” because “every thing that has an immoral tendensy should be prohibited;—every exceptionable play, now extant, should be altered, or rejected, and none but those that have the good of mankind for their object, should be acted”). For an analysis of mid-1790s controversies about raising liberty poles, see Cornell , supra note 82, at 922-32.

See, e.g. , Hutcheson , supra note 163, at 185 (asking “[i]f the Alienation be within our natural Power” and whether it “may serve some valuable Purpose”).

An Old Whig IV , Indep. Gazetteer ( Philadelphia), Oct. 27, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 497, 501 (John P. Kaminski & Gaspare J. Saladino eds., 1981). Benjamin Rush lamented that combination, writing in 1777 that Pennsylvania’s “Bill of Rights has confounded natural and civil rights in such a manner as to produce endless confusion in society.” Benjamin Rush, Observations upon the Present Government of Pennsylvania , in Four Letters to the People of Pennsylvania 3 (Philadelphia, Styner & Cist 1777).

See Campbell, supra note 13, at 99.

Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 Papers of Thomas Jefferson, supra note 14, at 132.

Id. (listing “trial by jury, Habeas corpus laws, free presses” as positive rights); see also Federal Farmer No. 6 (Dec. 25, 1787), in 20 Documentary History of the Ratification , supra note 14, at 979, 983-84 (2004) (distinguishing natural rights from “constitutional or fundamental” rights); Federal Farmer No. 16 (Jan. 20, 1788), in 20 Documentary History of the Ratification , supra note 14, at 1051, 1059 (2004) (describing press freedom as a “fundamental right”). But see Heyman, supra note 3, at 1289 (citing Federal Farmer for the idea that press freedom is a natural right); McAffee, supra note 41, at 278-79 (same).

See sources cited supra note 3.

See supra Part II.

The Founders also often mentioned the freedom of the press as an obligation of printers to publish all items “conducive of general Utility,” without discrimination among writers. Livingston, supra note 139 , at 81. See generally Robert W. T. Martin, The Free and Open Press: The Founding of Democratic Press Liberty, 1640-1800 (2001) (presenting a scholarly account of the development of the concept of the free press). This usage was prevalent, but it related to the public norms applicable to printers, not limitations on governmental power, and it seems to have had no direct relationship to original understandings of the First Amendment.

Pa. Const . of 1776, art. 12 (“[T]he people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.”); see also Complete Bill of Rights , supra note 73, at 93 (presenting similar proposals of North Carolina, Rhode Island, Virginia, and the Pennsylvania minority). For a history of this provision, see Smith, supra note 8, at 58-63. Scholars have elided the distinct meanings of these clauses. See, e.g. , Levy, supra note 3, at 204; Volokh, supra note 3, at 1080-81. Other states opted for a simple declaration in favor of the liberty of the press. See Anderson, supra note 6, at 464-65, 538-41. Vermont, which had asserted its independence from New York, was the only other state to invoke the freedom of speech in its constitution. See Vt. Const . of 1786; Vt. Const. of 1777, ch. 1, §  14. For John Adams’s earlier proposal of a nearly identical provision, see John Adams, The Report of a Constitution or Form of Government for the Commonwealth of Massachusetts (Sept. 1, 1779), reprinted in 4  The Works of John Adams 219, 227 (Charles Francis Adams ed., Boston, Charles C. Little & James Brown 1851) (“The people have a right to the freedom of speaking, writing, and publishing their sentiments. The liberty of the press, therefore, ought not to be restrained.”). For a brief history of this proposal, see Clyde Augustus Duniway, The Development of Freedom of the Press in Massachusetts 133-36 (1906).

4 William Blackstone, Commentaries * 151, *152. Notably, Blackstone assumed that “the object of legal punishment” was harmful speech, “destructive of the ends of society.” Id. at * 153.

De Lolme, supra note 182, at 283. Sedition was originally tried in the Star Chamber, without common-law procedural rights. See Mayton, supra note 8, at 105.

Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 455 (Merrill Jensen ed., 1976); see also, e.g. , [Hugh Williamson], Speech at Edenton, N.C. , N.Y. Daily Advertiser (Feb. 25, 1788), in 16 Documentary History of the Ratification, supra note 14, at 201, 202 (John P. Kaminski & Gaspare J. Saladino eds., 1986) (equating freedom of the press with freedom from “the restraint of any license”); N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette , Jan. 27, 1790, at 2 (statement of Rep. Rufus King) (same).

To the Citizens of Virginia , Winchester Va. Gazette , Feb. 22, 1788, reprinted in 8  Documentary History of the Ratification , supra note 14, at 404-05 (1988) ; cf. Letter from John Adams to William Cushing (Mar. 7, 1789), in Freedom of the Press , supra note 73, at 152, 153 (“[I]f the jury found [the putatively libellous statements] true and that they were published for the Public good, they would readily acquit.”); Cincinnatus I: To James Wilson, Esquire , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification , supra note 14, at 160, 163 (John P. Kaminski et al. eds., 2003) (warning that without a jury the government “will easily find pretexts” to restrain “what it may please them to call—the licentiousness of the press”).

See, e.g. , Meyler, supra note 18, at 581.

See Hamburger, supra note 3, at 954. Inalienable natural rights, just like alienable natural rights, were circumscribed by natural law. Id. at 931-32, 954.

Wilson, supra note 131, at 509.

Id. at 514-18.

Id. at 522.

See R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice 97-98 (2015).

Addison, supra note 94, at 29; see Helmholz, supra note 207, at 96 (mentioning English invocations of this idea); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought , 30 Stan. L. Rev . 843, 854 (1978) (describing the custom of the common law as “the most reliable evidence of the content of natural law”); see also Larry D. Kramer, The Supreme Court, 2000 Term—Foreword: We the Court , 115 Harv. L. Rev . 5, 39-40 (2001) (noting that natural rights required political recognition before entering the customary constitution).

Wooddeson, supra note 13, at 28; see, e.g. , 1 William Blackstone, Commentaries *74 (observing that the common law “probably was introduced by the voluntary consent of the people”); Sullivan , supra note 102, at 16 (“The common law, is a system of commonly received opinions, established by the common consent of the people, without acts of the legislature, and defined by practice in the courts of law.”); James Wilson, Of Municipal Law , in 1 Collected Works of James Wilson , supra note 85, at 549, 569 (“A customary law carries with it the most unquestionable proofs of freedom in the country, which is happy enough to be the place of its abode.”).

See Reid, supra note 74, at 22. Overlooking the Founders’ appreciation for the substantial indeterminacy of natural law, James Whitman asserts that their writings about custom and reason lacked coherence and intelligibility and were, instead, “a confused mélange.” James Q. Whitman, Why Did the Revolutionary Lawyers Confuse Custom and Reason? , 58 U. Chi. L. Rev . 1321, 1323, 1367 (1991). This position leads Whitman to the bold conclusion that “[t]here is little point in trying to identify the underlying logic of American legal thinking in the revolutionary era,” and “[s]tudies that purport to explain the Founders’ conception of the Constitution are thus doomed to mislead.” Id. at 1366-67. In my view, Whitman gives inadequate attention both to the recognition of underdeterminacy in reason, which made it far easier to claim simultaneous fidelity to both reason and custom, and to the rational need for established legal rules, including customary rules. Locke and Blackstone, for instance, each insisted that human law must conform to natural law, that natural law is a highly underdeterminate source of law, and that reason dictates that governments must act pursuant to established rules. See 1 William Blackstone, Commentaries *42-55, *67-71; John Locke , Second Treatise of Government §§ 135-137 (1690), reprinted in John Locke, supra note 111, at 159-61.

See James Wilson, Of the Law of Nations , in 1 Collected Works of James Wilson , supra note 85, at 526, 529; see also , e.g. , 1 William Blackstone, Commentaries *41 (“This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other . . . . [N]o human laws are of any validity, if contrary to this.”).

Hamburger , supra note 113, at 38-39.

John Phillip Reid, Controlling the Law: Legal Politics in Early National New Hampshire 25 (2004) (quoting Dudley).

Hay , supra note 152, at 9.

Of course, the divide between lawyers and non-lawyers is stylized, just like my distinction between elites and non-elites. See Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 309.

See supra notes 200-201 and accompanying text.

Addison, supra note 94, at 48; see also, e.g. , William Paterson, Second Draft Opinion on the Sedition Law of 1798, reprinted in Williamjames Hull Hoffer, William Paterson and the National Jurisprudence: Two Draft Opinions on the Sedition Law of 1798 and the Federal Common Law , 22 J. Sup. Ct. Hist. 36, 48 (1997) (“[T]he freedom of the press is a relative term; and refers to an existing rule. We must first know in what the freedom of the press consists . . . .The com. law gives the rule, which is well known to every part of the U. States.”). Federalist arguments about judicial power had drifted in some respects by the late 1790s. See Larry D. Kramer, Marbury and the Retreat from Judicial Supremacy , 20 Const. Comment . 205, 220-21 (2003). But struggles between lawyerly and non-lawyerly modes of constitutional interpretation were already prominent by the late 1780s. See Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 304-11.

James Madison, The Report of 1800 (Jan. 7, 1800), in 17 The Papers of James Madison 303, 309 (David B. Mattern et al. eds., 1991). The context of this passage was a defense of state interpretive authority, but Madison’s language nicely captures the essence of his attack on using the common law to delineate the scope of speech and press freedoms.

Id. at 336.

Id. at 338. This analysis came in the midst of Madison’s discussion of “the proper boundary between the liberty and licentiousness of the press,” id. at 337, and the degree to which states, as a matter of “wis[e] . . . policy,” id. at 338, had properly chosen to underenforce speech-restrictive rules. The Virginia Report of 1800 never took the broad, affirmative position that any restriction of political speech necessarily violates speech and press freedoms. Rather, it presented a narrower, negative argument that American protections for expressive freedom ought to be “greater” than in England, id. at 337, and were, in practice, “not . . . confined to the strict limits of the common law,” id. at 338.

Id. at 337. Relatedly, Republicans denied that judges were the exclusive or supreme arbiters of constitutional meaning. See Kramer, supra note 217, at 222.

Madison, supra note 218, at 337, 339.

See id. at 339 (“[The First Amendment] was meant as a positive denial to Congress, of any power whatever on the subject.”).

For the defeat of proposals to guarantee the freedom of the press, see 2 The Records of the Federal Convention of 1787 , at 341, 587-88, 617 (Max Farrand ed., 1911). For a more detailed account, see Paul Finkelman, James Madison and the Bill of Rights: A Reluctant Paternity , 9 Sup. Ct. Rev . 301, 304-08 (1990).

See, e.g. , George Mason, Objections to the Constitution of Government Formed by the Convention , in 8 Documentary History of the Ratification , supra note 14, at 43, 43 (John P. Kaminski & Gaspare J. Saladino eds., 1988). Anti-Federalists “were by no means a homogenous or cohesive group,” but “common themes run through many of their writings.” Wesley J. Campbell, Commandeering and Constitutional Change , 122 Yale L.J. 1104, 1127-28 (2013). For the leading treatment of Anti-Federalism, see Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (1999). For a concise history of the Bill of Rights, see Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, at 435-68 (2010).

See, e.g. , Pennsylvania Ratification Convention Debates (Nov. 28, 1787) (statement of Robert Whitehill), in 13 Documentary History of the Ratification , supra note 14, at 399, 402 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (stating that “from the nature of their power they must necessarily be the judges, what laws are necessary and proper”); Pennsylvania Ratification Convention Debates (Dec. 4, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification , supra note 14, at 467, 468 (Merrill Jensen ed., 1976) (“The powers of Congress are unlimited and undefined. They will be the judges of what is necessary and proper .”); Virginia Ratification Convention Debates (June 10, 1788) (statement of James Monroe), in 9 Documentary History of the Ratification, supra note 14, at 1092, 1112 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (stating that Congress would be “not restrained or controuled from making any law, however oppressive in its operation, which they may think necessary to carry their powers into effect”) .

Brutus II , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification , supra note 14, at 154, 156 (John P. Kaminski et al. eds., 2003); see also, e.g. , Cincinnatus I: To James Wilson, Esquire , N.Y. J., Nov. 1, 1787, reprinted in id. at 160, 162 (“The conventions that made the state and the general constitutions, sprang from the same source, were delegated for the same purpose . . . .”).

An Officer of the Late Continental Army , Indep. Gazetteer (Philadelphia), Nov. 6, 1787, reprinted in 2 Documentary History of the Ratification , supra note 14, at 210, 211 (Merrill Jensen ed ., 1976). The following year, Findley tied the “right of every man to publish his sentiments on public proceedings” to the requirement of a jury trial, but he did not suggest that publishers were constitutionally immune from prosecution even with a jury . Pennsylvania Assembly Debates (Sept. 1788) (statement of Rep. William Findley), in Respublica v. Teischer, 1 U.S. (1 Dall.) 335, 335-36 n.* (Pa. 1788). For other concerns about the manipulations of libel laws, see Virginia Ratification Convention Debates (June 16, 1788) (statement of George Mason), in 10 Documentary History of the Ratification , supra note 14, at 1325, 1326 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (noting that Congress might construe its powers to punish “any writer [who] should dare to stand forth and expose to the community at large, the abuses of those powers”); and Pennsylvania Ratification Convention Debates (Dec. 4, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 467, 468 (Merrill Jensen ed ., 1976) (“The liberty of the press is not secured. Congress may license the press, and declare what shall be a libel.”). Others located a possible grounding for this power in the Speech and Debate Clause. See Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of Robert Whitehill), in 2 Documentary History of the Ratification, supra note 14, at 454 , 454 (Merrill Jensen ed., 1976) (“The press is by this clause restrained; because the members shall not be questioned for speeches in any other place.”).

A Plebeian, An Address to the People of the State of New York (Apr. 17, 1788), in 20 Documentary History of the Ratification , supra note 14, at 942, 961 ( John P. Kaminski et al. eds., 2004); Federal Farmer No. 16 (Jan. 20, 1788), in id. at 1059.

See, e.g. , Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of Robert Whitehill), in 2 Documentary History of the Ratification , supra note 14, at 454 , 454 (Merrill Jensen ed., 1976) (stating that Congress, under the Copyright Clause, “may license the press, no doubt ; and under licensing the press, they may suppress it”) .

See, e.g. , Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 30, 1788) (statement of William Lenoir), in 4 Debates in the Several State Conventions, supra note 76, at 203 (“[Congress] have also an exclusive legislation in their ten miles square . . . . Should any one grumble at their acts, he would be deemed a traitor, and perhaps taken up and carried to the exclusive legislation, and there tried without a jury.”); Virginia Ratification Convention Debates (June 16, 1788) (statement of George Mason), in 10 Documentary History of the Ratification, supra note 14, at 1325, 1326 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (“[C]ould they not . . . lay a dangerous restriction on the press? Might they not even bring the trial of this restriction within the ten miles square, when there is no prohibition against it?”).

But see An Old Whig III , Indep. Gazetteer (P hiladelphia), Oct. 20, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 425, 426-27 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) (identifying the Supremacy Clause as a potential threat to the freedom of the press).

Cf. Address of the Minority of the Maryland Convention , Annapolis Md. Gazette , May 1, 1788, reprinted in 17 Documentary History of the Ratification, supra note 14, at 242, 244 ( John P. Kaminski & Gaspare J. Saladino eds., 1995) (“In prosecutions in the federal courts for libels, the constitutional preservation of this great and fundamental right may prove invaluable.”); Cincinnatus I: To James Wilson, Esquire , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 160, 163-64 (John P. Kaminski et al. eds., 2003) (describing press freedom as the “only” security “that will save any future printer from the fangs of power” because otherwise “the judges might put the verdict of a jury out of the question”).

An exception was the frequent Anti-Federalist inclusion of a “right to freedom of speech, and of writing and publishing their sentiments,” or similar phrases, in their lengthy lists of draft amendments. See Virginia Convention Amendments (June 27, 1788), in 18 Documentary History of the Ratification , supra note 14, at 199, 202 ( John P. Kaminski & Gaspare J. Saladino eds., 1995); see also Proposals from the State Conventions, in Complete Bill of Rights , supra note 73, at 93 (presenting similar proposals by North Carolina, Rhode Island, and the Pennsylvania minority); The Society of Western Gentlemen Revise the Constitution , Va. Indep. Chron. ( Richmond ), Apr. 30, 1788, reprinted in 9 Documentary History of the Ratification , supra note 14, at 769, 773 ( John P. Kaminski & Gaspare J. Saladino eds., 1990) (“That the people have a right to the freedom of speech, of writing, and publishing their sentiments; therefore printing presses shall not be subject to restraint, other than liableness to legal prosecution, for false facts printed and published.”) . A decade earlier, some town returns in Massachusetts mentioned the omission of the freedom of speech (or speaking, writing, and publishing) in the state’s proposed constitution. See The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 , at 682, 742, 749-50, 762, 789, 795, 856 (Oscar Handlin & Mary Handlin eds., 1966).

Federal Farmer No. 16 (Jan. 20, 1788), in 20 Documentary History of the Ratification, supra note 14, at 1051, 1057-58 ( John P. Kaminski et al. eds., 2004); see also, e.g. , A Plebeian, An Address to the People of the State of New York (Apr. 17, 1788), in 20 Documentary History of the Ratification , supra note 14, at 942, 961-62 ( John P. Kaminski et al. eds., 2004) (focusing on fundamental positive rights); Brutus II , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification , supra note 14, at 154, 156-59 ( John P. Kaminski et al. eds., 2003) (same); Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in 12 The Papers of Thomas Jefferson, supra note 14, at 438, 440 (1955) (same). Many Anti-Federalists mentioned the freedom of conscience, which was an inalienable natural right that had assumed a place in the customary constitution (through the Toleration Act, for instance). McAffee asserts that Federal Farmer’s “same analysis applied to the rights that were considered natural and inalienable,” McAffee, supra note 41, at 278, but McAffee errs by concluding that Federal Farmer viewed press freedom as a retained natural right. See supra note 193.

See, e.g. , Heyman, supra note 3, at 1289 (noting that the “most important” rights to Anti-Federalists included “freedom of speech and press”); cf. Mayton, supra note 8, at 118 (“[A]n understanding was reached at the convention and during the ratification process that the national government had no power over speech.”). But see Rosenthal, supra note 6, at 15 (“As for freedom of speech, anti-Federalists said virtually nothing about it.”); Federal Farmer No. 6 (Dec. 25, 1787), in 20 Documentary History of the Ratification, supra note 14, at 979, 985 (John P. Kaminski et al. eds., 2004) (mentioning only press freedom); Virginia Ratification Convention Debates (June 16, 1788) (statement of Patrick Henry), in 10 Documentary History of the Ratification, supra note 14, at 1328, 1332 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (same); Philanthropos [Tench Coxe], To the People of the United States , Pa. Gazette ( Philadelphia ), Jan. 16, 1788, reprinted in 15 Documentary History of the Ratification, supra note 14, at 391, 393 ( John P. Kaminski & Gaspare J. Saladino eds., 1984) (noting that, outside of Pennsylvania, “the freedom of speech” was unmentioned by leading Anti-Federalists). Anti-Federalist references to freedom of expression usually related to the effect of press restraints on public discussion. See, e.g. , An Old Whig I , Indep. Gazetteer ( Philadelphia) , Oct. 12, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 376, 378 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) ( mentioning, in a discussion of press freedom, “free communication . . . on political subjects”); [Samuel Bryan], Centinel II , Phila. Freeman’s J. , Oct. 24, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 457, 460, 466 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) ( mentioning “the right of expressing and publishing . . . sentiments upon every public measure” but otherwise focusing solely on press freedom). Mentions of the longstanding English right of petition were similarly rare. See Mark, supra note 82, at 2206.

See Wood, supra note 18, at 295-96; Rakove, supra note 77, at 187 ; John Phillip Reid, The Authority of Rights at the American Founding , in The Nature of Rights , supra note 76, at 67, 97 ; Suzanna Sherry, Natural Law in the States , 61 U. Cin. L. Rev . 171, 171-72 (1992) ; Suzanna Sherry, The Founders’ Unwritten Constitution , 54 U. Chi. L. Rev. 1127, 1157-58 (1987); William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455, 502 (2005). Whether customary positive rights implicitly limited governmental authority continued to be a topic of heated discussion. Compare Calder v. Bull, 3 U.S. (3 Dall.) 386, 387-89 (1798) (opinion of Chase, J.) (concluding that certain fundamental positive rights were implicit limitations on governmental power), with id. at 398-99 (opinion of Iredell, J.) (confining judicial review to enumerated rights).

[Jay], supra note 75, at 933; see also, e.g. , Uncus , Md. J. ( Baltimore ) , Nov. 9, 1787, reprinted in 14 Documentary History of the Ratification, supra note 14, at 76, 78 ( John P. Kaminski & Gaspare J. Saladino eds., 1983) (declaring that freedom of the press is “a privilege, with which every inhabitant is born;-a right . . . too sacred to require being mentioned”); Fo e deral Constitution , Pa. Gazette ( Philadelphia), Oct. 10, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 362, 363 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) (“[T]he Liberty of the Press would have been an inherent and political right, as long as nothing was said against it.”); South Carolina Ratification Convention Debates (Jan. 18, 1788) (statement of Charles Cotesworth Pinckney), in Complete Bill of Rights , supra note 73, at 98, 98 (“The general government . . . has no power to take away the liberty of the press.”).

See Virginia Ratification Convention Debates (June 25, 1788), in 10 Documentary History of the Ratification, supra note 14, at 1537-38 ( John P. Kaminski & Gaspare J. Saladino eds., 1993); New York Declaration of Rights, Form of Ratification, and Recommendatory Amendments to the Constitution (July 26, 1788), in 23 Documentary History of the Ratification , supra note 14, at 2326, 2326-28 ( John P. Kaminski et al. eds., 2009).

See Campbell, supra note 13, at 100.

The Federalist No. 84, supra note 114, at 579 (Alexander Hamilton); see also, e.g. , A Native of Virginia: Observations upon the Proposed Plan of Federal Government (Apr. 2, 1788), in 9 Documentary History of the Ratification, supra note 14, at 655, 691 ( John P. Kaminski & Gaspare J. Saladino eds., 1990) (“[A]s the Congress can claim the exercise of no right which is not expressly given them by this Constitution; they will have no power to restrain the press in any of the States; and therefore it would have been improper to have taken any notice of it.”); [Robert Sherman], A Citizen of New Haven , Conn. Courant ( Hartford), Jan. 7, 1788, reprinted in 3 Documentary History of the Ratification, supra note 14, at 524, 525 (Merrill Jensen ed., 1978) (“The liberty of the press can be in no danger, because that is not put under the direction of the new government.”).

See James Wilson, Speech at a Public Meeting in Philadelphia (Oct. 6, 1787), in 13 Documentary History of the Ratification , supra note 14, at 337, 340 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) ; Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification , supra note 14, at 454, 454-55 (Merrill Jensen ed., 1976); [James Iredell], Marcus No. 4 , Norfolk & Portsmouth J. , Mar. 12, 1788, reprinted in 16 Documentary History of the Ratification , supra note 14, at 379, 382 ( John P. Kaminski & Gaspare J. Saladino eds., 1986) (“[T]he future Congress will have no other authority over [the press] than to secure to authors for a limited time the exclusive privilege of publishing their works.”). But Federalists generally denied only federal power over the freedom of the press .

The Federalist No. 84, supra note 114, at 580 n.* (Alexander Hamilton). Other Federalists equated press freedom with freedom from “the restraint of any license.” Hugh Williamson, Speech at Edenton, N.C. , N.Y. Daily Advertiser , Feb. 25, 1788, reprinted in 16 Documentary History of the Ratification, supra note 14, at 201, 202 ( John P. Kaminski & Gaspare J. Saladino eds., 1986); see, e.g. , Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification , supra note 14, at 454, 455 (Merrill Jensen ed., 1976) (“[W]hat is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual.”).

See infra notes 122 -128 and accompanying text.

The Federalist No. 84, supra note 114, at 578 (Alexander Hamilton); see Shain, supra note 158, at 127; see, e.g. , Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 29, 1788) (statement of [Archibald] Maclaine), in 4 Debates in the Several State Conventions , supra note 76, at 160, 166-67; John De Witt No. 2 , Am. Herald ( Boston), Oct. 29, 1787, reprinted in 4 Documentary History of the Ratification, supra note 14, at 156, 158-59 ( John P. Kaminski & Gaspare J. Saladino eds., 1997); see also Terry Brennan, Natural Rights and the Constitution: The Original “Original Intent , ” 15 Harv. J.L. & Pub. Pol’y 965, 988-97 (1992) (collecting dozens of examples).

See, e.g. , Letter from George Washington to James Madison (ca. May 31, 1789), in 12 The Papers of James Madison , supra note 72, at 191, 191 (Charles F. Hobson et al. eds., 1979); Letter from David Ramsay to Benjamin Rush (Nov. 10, 1787), in 14 Documentary History of the Ratification , supra note 14, at 83, 83-84 ( John P. Kaminski & Gaspare J. Saladino eds., 1983).

See Finkelman, supra note 224, at 336-37; see also Cornell , supra note 225, at 158-63 (explaining the modesty of the Bill of Rights); see also, e.g. , Letter from Fisher Ames to Thomas Dwight (June 11, 1789), in 16 Documentary History of the First Federal Congress, supra note 14, at 748, 749 (Charlene Bangs Bickford et al. eds., 2004) (“Upon the whole, it may do some good towards quieting men who attend to sounds only, and may get the mover [James Madison] some popularity—which he wishes.”); Letter from Pierce Butler to James Iredell (Aug. 11, 1789), in 16 Documentary History of the First Federal Congress, supra , at 1288, 1289 (Charlene Bangs Bickford et al. eds., 2004) (“A few milk-and-water amendments have been proposed by Mr. M[ adison ], such as liberty of conscience, a free press, and one or two general things already well secured.”).

See Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 The Papers of Thomas Jefferson , supra note 14, at 659, 660 (1958) (“This instrument forms us into one state as to certain objects, and gives us a legislative and executive body for these objects. It should therefore guard us against their abuses of power within the feild [sic] submitted to them.”). Scholars have long disagreed about Madison’s private ambivalence about a bill of rights. See Stuart Leibiger, James Madison and Amendments to the Constitution, 1787-1789: “Parchment Barriers , ” 59 J .S. Hist . 441, 441-42 (1993) (reviewing the scholarly debate).

Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 818, 823 (Charlene Bangs Bickford et al., eds., 1992).

Id. at 823-24.

Id. at 823.

Id. at 825 (“ [I]ndependent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights”). Scholars often misattribute to Madison the idea that enumerating a right in the Constitution was necessary and sufficient for its judicial enforceability against contrary legislation. See, e.g. , Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation? , 5 N.Y.U. J.L. & Liberty 1, 19-20 (2010). Both the wording and the context of Madison’s statement, however, indicate that “ Madison was making a point about judicial psychology and judicial politics, not judicial duty.” Jud Campbell, Judicial Review and the Enumeration of Rights , 15 Geo. J.L. & Pub. Pol’y 569, 571 (2017). Madison, in other words, was addressing the same types of concerns that Alexander Hamilton mentioned in The Federalist regarding the “natural feebleness” of the judiciary, which Hamilton described as “in continual jeopardy of being overpowered, awed or influenced by [the] coordinate branches . . . .” The Federalist No. 78, supra note 114 , at 523 (Alexander Hamilton ).

Madison Resolution (June 8, 1789), in 4 Documentary History of the First Federal Congress, supra note 14, at 9 , 10 (Charlene Bangs Bickford & Helen E. Veit eds., 1986).

James Madison, Notes for Speech in Congress (June 8, 1789), in 12 The Papers of James Madison , supra note 72, at 193, 194 (Charles F. Hobson et al. eds., 1979) (“ natural rights , retained—as Speech, Con[science]”) .

Madison also singled out the freedom of the press in a set of three rights that would apply against state governments, again suggesting an intent to treat speech and press freedoms differently. See Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 818, 826 (Charlene Bangs Bickford et al. eds., 1992).

Proposal by [Roger] Sherman to House Committee of Eleven (July 21-28, 1789), in Complete Bill of Rights, supra note 73, at 83, 83.

House Committee of Eleven Report (July 28, 1789), in Complete Bill of Rights , supra note 73, at 84, 84. For a slightly longer discussion of the Amendment’s drafting history, see Rosenthal, supra note 6, at 15-17.

U.S. Const. amend. I.

See generally A. P. Martinich, Four Senses of ‘Meaning’ in the History of Ideas: Quentin Skinner’s Theory of Historical Interpretation , 3 J. Phil. Hist . 225 (2009) (classifying the four types of “meaning” in the history of ideas); Lawrence B. Solum, Intellectual History as Constitutional Theory , 101 Va. L. Rev. 1111 (2015) (examining the role of intellectual history in constitutional theory). Prompted by critics, see, e.g. , Paul Brest, The Misconceived Quest for the Original Understanding , 60 B.U. L. Rev. 204, 215-16 (1980), contemporary originalism scholarship focuses largely on the original “meanings” of constitutional provisions rather than the Framers’ intentions. The distinction between intentions and meanings is somewhat porous, however, considering that Madison—a native speaker of the language of eighteenth-century American constitutionalism—tried to draft a provision with the meaning that he intended. See Gienapp, supra note 10, at 938 & n.15; Solum, supra , at 1134-36.

See supra note 22 (collecting sources that discuss Founding Era disagreements about methods of constitutional interpretation).

See supra Section II.A.

For an introduction to “equitable” interpretation, see Hamburger , supra note 113, at 344-57; McConnell, supra note 252, at 20-21; and Michael W. McConnell, The Ninth Amendment in Light of Text and History , 2009 Cato Sup. Ct. Rev. 13.

See supra notes 124-136 and accompanying text.

Hortensius [ George Hay ], An Essay on the Liberty of the Press 38 (Philadelphia, Aurora Office 1799).

The Federalist No. 84, supra note 114, at 579 (Alexander Hamilton).

Id. at 580; see also Cooper v. Telfair, 4 U.S. (4. Dall.) 14, 18 (1800) (opinion of Chase, J.) (“The general principles contained in the constitution are not to be regarded as rules to fetter and controul; but as matter merely declaratory and directory . . . .”); 3 Documentary History of the Ratification, supra note 14 , at 471, 472-73 (Merrill Jensen ed., 1978) (making a similar point); [Webster], supra note 140 , at 484, 490 (“[A]ny restriction of [Congressional] power by a general indefinite expression, is a nullity—mere formal nonsense .”). In The Federalist , Hamilton expressed contradictory views, stating both that without judicial protection “the reservations of particular rights or privileges would amount to nothing,” The Federalist No. 78 , supra note 114 , at 524 (Alexander Hamilton), and that placing “ the whole power of the proposed government . . . in the hands of the representatives of the people . . . is the essential, and after all the only efficacious security for the rights and privileges of the people which is attainable in civil society,” The Federalist No. 28 , supra note 114, at 178 (Alexander Hamilton).

Parsons , supra note 111, at 367; see also, e.g. , Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 The Papers of James Madison , supra note 78, at 350, 351 (Robert A. Rutland et al. eds., 1973) (describing bills of rights as providing “exceptions” to legislative authority); The Federalist No. 78, supra note 114, at 524 (Alexander Hamilton) (describing constitutional rights like the rule against “ex-post-facto laws” as “certain specified exceptions to the legislative authority” that are enforceable in court).

Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 818, 823 (Charlene Bangs Bickford et al. eds., 1992) (emphasis added).

Id. at 824.

See supra Section II.C.

See supra Section II.B.

Addison, supra note 94, at 48. That stance, however, may be less revealing of original meaning than of the emergent Federalist quest for judicial supremacy, which sought to separate constitutional interpretation from matters of policy. Cf. Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 307 (“Elite legal culture in the Founding Era, particularly among Federalists, was designed to shore up a basic distinction between law and politics . . . . Proponents of popular constitutionalism generally sought to eliminate this distinction . . . .”); Iredell, supra note 49, at 344 (distinguishing “considerations of policy” from “questions of law”).

This account of the “original meaning” of the First Amendment is subject to the caveats mentioned in Part I regarding elite sources.

See sources cited supra note 4.

See Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 87-90 (2007); Bogen, supra note 8, at 431-35; Robert J. Reinstein & Harvey A. Silverglate, Legislative Privilege and the Separation of Powers , 86 Harv. L. Rev . 1113, 1120-40 (1973).

Bogen, supra note 8, at 436.

Amar, supra note 5, at 815; see sources cited supra note 5.

As one scholar observes, “The tie between legislative privilege and the first amendment was asserted as early as 1799 by George Hay.” Bogen, supra note 8, at 435 (citing [Hay] , supra note 265). True, but Hay was defining the meaning of the word “freedom,” not the provenance of the term “freedom of speech.” [ Hay ], supra note 265, at 42 (“[T]he meaning of the word freedom, is precisely and unequivocally established by the constitution itself.”). Hay argued that this “freedom” was secured through “a total exemption from the control of any law, or the jurisdiction of any court.” Id. John Thomson also analogized to legislative privilege without suggesting that it was the originating concept for the freedom of speech. See Thomson , supra note 24, at 19-20, 76-77.

Amar, supra note 5, at 790; cf. William Michael Treanor, Taking Text Too Seriously: Modern Textualism, Original Meaning, and the Case of Amar’s Bill of Rights, 106 Mich. L. Rev . 487, 494 (2007) (criticizing Amar’s “assumption that careful reading of the text consistently reveals original meaning”).

See, e.g. , Pa. Const . of 1790, art. IX, § 7 (declaring the right to speak on “any subject”); 3 Joseph Story, Commentaries on the Constitution of the United States § 1874 (1833) (recognizing “a right to speak, write, and print his opinions upon any subject whatsoever”); Tucker , supra note 133, at 376 (“Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political . . . .”); Wilson, supra note 85, at 1055-56 (stating that natural liberty existed for man to accomplish “those purposes . . . as his inclination and judgment shall direct”); Letter from William Cushing to John Adams (Feb. 18, 1789), in Freedom of the Press , supra note 73, at 147, 150 (“[D]oes [press freedom] not comprehend a liberty to treat all subjects and characters freely, within the bounds of truth?”) . A polity could, of course, choose to reaffirm only a portion of this natural liberty in its declaration of rights. See, e.g. , Vt. Const . of 1786, ch. I, § V (“That the people have a right of freedom of speech and of writing and publishing their sentiments, concerning the transactions of government . . . .”). Again, my focus is the meanings of the Speech and Press Clauses, not the motives for enacting them. See supra note 58 (explaining my approach).

Heyman, supra note 3, at 1282; see supra note 48 (discussing Philip Hamburger’s views).

Individuals, by contrast, had natural rights—and particularly the right of reputation—that could be abridged even through well-intentioned statements, thus placing a natural-law qualification on the inalienable right to make well-intentioned statements.

See sources cited supra note 182.

Examples include profane swearing bans, blasphemy laws, restrictions on advertising, restrictions on theater performances, and rules against making certain agreements on Sundays. See 8 Annals of Cong . 2148-49 (1798) (statement of Rep. Harrison Gray Otis) (recounting many extant legal restrictions on speech); Constitution and Laws of the State of New Hampshire; Together with the Constitution of the United States 339 (1805) ( prohibiting lotteries and any advertising thereof) ; 3 Laws of the Commonwealth of Pennsylvania, 1700-1810, at 177-78 (1810) ( forbidding “any worldly employment or business whatsoever” on Sunday, as well as profanity and swearing at all times).

See Michael W. McConnell, Tradition and Constitutionalism Before the Constitution , 1998 U. Ill. L. Rev . 173, 196; Rakove, supra note 77, at 193. Indeed, the Ninth Amendment may reject “the necessity or superiority of enumeration.” Kurt T. Lash, The Lost History of the Ninth Amendment 82 (2009). Some people suggested that enumeration would facilitate the judicial enforcement of rights, see, e.g. , An Old Whig II , Indep. Gazetteer ( Philadelphia), Oct. 17, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 399, 402 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) (“[W]ho can overrule [Congress’s] pretensions?-No one, unless we had a bill of rights to which we might appeal, and under which we might contend against any assumption of undue power and appeal to the judicial branch of the government to protect us by their judgements.”), but these claims surely referred to legal rights and did not intimate that judges would assume the position of deciding which restrictions of natural liberty promoted the public good, see supra notes 232-236 and accompanying text.

Congressional Debates (Aug. 15, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 1259, 1259 (Charlene Bangs Bickford et al. eds., 1992); see Rakove, supra note 4, at 324.

Federalists made this point over and over in the Sedition Act debates. See, e.g. , H.R. Rep. No. 5-110, at 183 (1799) (contending that press freedom had never extended, “according to the laws of any State . . . to the publication of false, scandalous, and malicious writings against the Government”); Iredell, supra note 49, at 348 (arguing that state constitutions and bills of rights were the “strongest proof . . . that the freedom of the press does not require that libellers shall be protected from punishment”).

But see Bogen, supra note 8, at 458 (“At a minimum, the freedom of speech meant that restrictions on speech are impermissible unless necessary to accomplish a legitimate function of government, and that the courts rather than the legislature should ultimately determine that necessity.”).

Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (opinion of Iredell, J.). The limited nature of Founding Era judicial review is well known. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law , 7 Harv. L. Rev . 129, 140-42 (1893); see also Christopher R. Green, Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review , 57 S. Tex. L. Rev . 169, 172-83 (2015) (documenting the strong presumption of constitutionality evident in early state court decisions); McGinnis, supra note 62, at 880-904 (explaining that early judges would find unconstitutionality only when constitutional meaning was “clear”) Notably, the clarity of constitutional law did not depend solely on text but “drew on well-established principles of the customary constitution as well.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 99 (2004).

Calder , 3 U.S. (3 Dall.) at 399 (opinion of Iredell, J.).

See, e.g. , Campbell, supra note 13, at 99-104.

Consequently, Founding Era judges repeatedly upheld narrowly drawn sedition laws. See Blumberg , supra note 8, at 1-6. Wendell Bird argues that some Federalist judges rejected the constitutionality of sedition laws. See Bird , supra note 3, at 474. Bird’s research is prodigious, but his evidence merely shows that Federalist judges accepted the freedom of opinion, not that they rejected the constitutionality of narrowly drawn sedition laws. See supra notes 166-187 and accompanying text. Bird, like Leonard Levy before him, “fails to recognize that it was possible for the framers of the first amendment [among other Founders], influenced by republican political theory, to expand the protection for freedom of expression well beyond the narrow boundaries of the English common law while retaining some conception of seditious libel.” Rabban, supra note 8, at 796.

But see supra notes 36 & 41 and accompanying text. To be sure, if viewed in isolation from its context, the First Amendment’s text could be stretched to eliminate federal power to regulate speech. All that a reader would have to do, after all, is disregard the limits on expressive freedom imposed by natural law and social obligation, leading to a view that the First Amendment categorically prohibited any interference with expression. See Tucker, supra note 133, at 386.

See Campbell, supra note 152. Although Republicans prevailed in their inventive interpretation of the First Amendment, an understanding of speech freedom as a natural right remained prominent in the nineteenth century. See, e.g. , Cooper , supra note 161, at 41; 1 Benjamin L. Oliver, The Rights of An American Citizen 222 (1832).

[Hay] , supra note 265, at 39.

See, e.g. , Leonard W. Levy, Introduction to Freedom of the Press , supra note 73, at xix, lvi-lvii; Jay, supra note 6, at 791.

See, e.g. , The Address of the Minority in the Virginia Legislature to the People of that State; Containing a Vindication of the Constitutionality of the Alien and Sedition Laws 12 (1799); Addison, supra note 94, at 44; Paterson, supra note 217, at 48; cf. The Federalist No. 84, supra note 114, at 575, 579 (Alexander Hamilton) (expressing concern that bills of rights could be “dangerous” because they could “afford a colourable pretext to claim more [governmental powers] than were granted”) .

House Resolution and Articles of Amendment (Aug. 24, 1789), in 4 Documentary History of the First Federal Congress, supra note 14, at 35, 36, 39 (Charlene Bangs Bickford & Helen E. Veit eds., 1986) (emphasis added).

See Anderson, supra note 6, at 493, 502, 508; Bogen, supra note 8, at 458 n.143. Even strict textualists might accept this argument. Cf. John F. Manning, Textualism as a Nondelegation Doctrine , 97 Colum. L. Rev . 673, 737 n.272 (1997) (“[T]extualist judges . . . do not categorically exclude a statute’s drafting evolution from their consideration of statutory context.”); Caleb Nelson, What Is Textualism? , 91 Va. L. Rev . 347, 361 (2005) (“[M]any textualists use records of a bill’s drafting history . . . .”).

See supra note 52 and accompanying text.

See Caleb Nelson, Judicial Review of Legislative Purpose , 83 N .Y.U. L. Rev . 1784, 1796 (2008).

376 U.S. 254 (1964).

See, e.g. , Wortman, supra note 24, at 259 (stating that public officials can sue for libel “upon the same footing with a private individual,” given that “[t]he character of every man should be deemed equally sacred, and of consequence entitled to equal remedy”); Tucker, supra note 133, at 237-38 (same); cf. Thomson , supra note 24, at 81-84 (calling for unimpeded public debate about public figures).

See supra notes 188-189 and accompanying text.

See, e.g. , John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution 181-85 (2013); Baude, supra note 63, at 2358-61; McConnell, supra note 62, at 1765; Stephen E. Sachs, Originalism as a Theory of Legal Change , 38 Harv. J.L. & Pub. Pol’y 817, 861-64 (2015).

See generally Randy E. Barnett, The Gravitational Force of Originalism , 82 Fordham L. Rev . 411, 420-31 (2013) (arguing that originalism can exert a “gravitational force” on doctrine, even when original meaning does not explicitly form the basis of judicial decisions).

See infra note 328.

For instance, robust judicial management of the Speech Clause might stem from a broader project of judicial engagement, see, e.g. , Barnett , supra note 69, at 132-49, 255-71, or process-based concerns about regulations of expression, see, e.g. , John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 105-16 (1980).

See, e.g. , Kagan, supra note 70, at 414; Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism , 27 J. Legal Stud . 725, 736-44 (1998); Strauss, supra note 70, at 196-202. See generally Richard H. Fallon, Jr., Implementing the Constitution 89-95 (2001) (discussing motive tests).

See Ronald Dworkin, Taking Rights Seriously, at xi (1977) (defining rights as “political trumps held by individuals”); Pildes, supra note 311, at 728 (identifying “the view of rights as immunities” as “the prevailing view among rights philosophers”). Modern doctrine permits regulation of speech for good reasons. See Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law , 97 Mich. L. Rev . 1, 19-26 (1998); Pildes, supra , at 736-44.

Pildes, supra note 311, at 729.

See generally United States v. Eichman, 496 U.S. 310 (1990) (invalidating a federal law that criminalized flag burning); Texas v. Johnson, 491 U.S. 397 (1989) (holding that flag burning is protected expression under the First Amendment); John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis , 88 Harv. L. Rev . 1482 (1975) (analyzing flag-desecration cases). Similarly, the government can impose criminal penalties on “fighting words”—i.e., speech likely to provoke violence—but it cannot target a more limited set of fighting words that the government finds especially objectionable. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

An important qualification is that the government generally cannot justify speech-suppressing laws based on communicative harms . This principle finds no historical support unless one supposes that its adoption, in the aggregate, promotes the public good.

See, e.g. , Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (upholding a content-based regulation of speech in the context of judicial elections).

The same pattern has been true of press freedoms. In the early twentieth century, the scope of the rule against prior restraints expanded beyond just bans on licensing regimes. See Near v. Minnesota, 283 U.S. 697 (1931). At the same time, the Court recognized that countervailing governmental interests can sometimes justify prior restraints. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (collecting cases). Similarly, procedural due process rights have vastly expanded in scope (covering “new property,” for instance), while now providing only a “flexible” degree of “procedural protections as the particular situation demands,” Matthews v. Eldridge, 424 U.S. 319, 321 (1976), rather than an inflexible set of common-law procedural rules. One could make a similar argument about many other rights.

See, e.g. , Hugo Black, The Bill of Rights , 35 N. Y.U. L. Rev . 865, 874 (1960); see also Alexander Meiklejohn, The First Amendment Is an Absolute , 1961 Sup. Ct. Rev . 245 (arguing that the First Amendment is absolute within the domain of self-governance).

See generally Ely, supra note 310.

See supra note 311 and accompanying text.

Some proponents of more robust speech doctrine in the early twentieth century took this approach, emphasizing the aggregate social benefits of speech-protective doctrines. See White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America , supra note 60, at 316-21. But a weakness in this approach was the indeterminacy of questions about the public good and doubts about why judges were better situated than legislators to make these types of assessments. Id. at 322.

Jack M. Balkin, The Construction of Original Public Meaning , 31 Const. Comment . 71, 93 (2016).

District of Columbia v. Heller, 554 U.S. 570, 635 (2008).

United States v. Stevens, 559 U.S. 460, 470 (2010).

Id. ; see also, e.g. , United States v. Alvarez, 567 U.S. 709, 717-18, 722-23 (2012) (plurality opinion) (summarizing the same idea and applying it to false statements).

See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2229 (2015). The issue in Reed was how to identify “content-based” speech restrictions—a concept aptly described as “the keystone of First Amendment law.” Kagan, supra note 70, at 443; see also Seth F. Kreimer, Good Enough for Government Work: Two Cheers for Content Neutrality , 16 U . Pa. J. Const. L. 1261, 1263 n.2 (2014) (collecting sources). Opting for a broader, more speech-protective definition, the Court declared that the First Amendment “expressly targets the operation of the laws— i.e. , the ‘abridg[ement] of speech’—rather than merely the motives of those who enacted them.” Reed , 135 S. Ct. at 2229 (alteration in original) (quoting U.S. Const. amend. I). Historically, however, the mere “operation” of a speech restriction did not present a judicially cognizable First Amendment problem unless it abridged either a common-law right or the inalienable liberty to express one’s thoughts. See supra notes 260-274 and accompanying text.

1 William Blackstone, Commentaries *125.

St. George Tucker , On the State of Slavery in Virginia (1796), reprinted in View of the Constitution of the United States with Selected Writings, supra note 133, at 402, 407.

Jack M. Balkin, Living Originalism 32 (2011); see also id. at 42 (identifying “abstract or vague phrases of the Constitution,” including “cruel and unreasonable punishments” and “freedom of speech”); id. at 350 n.12 (making the same point with respect to “the Fourth Amendment’s standard of ‘unreasonable’ searches and seizures and the First Amendment’s principle of ‘freedom of speech’”); Dworkin , supra note 54, at 199 (“The First Amendment, like the other great clauses of the Bill of Rights, is very abstract.”).

Cf. Dworkin , supra note 54, at 272 (“The framers meant to enact a moral principle of constitutional dimensions, and they used broad and abstract language appropriate to that aim.”).

Laura K. Donohue, The Original Fourth Amendment , 83 U. Chi. L. Rev. 1181, 1192 (2016); see also id. at 1270-71 (“That which was consistent with the common law was reasonable and, therefore, legal. That which was inconsistent was unreasonable and illegal.”).

Id. at 1192.

John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation , 102 Nw. U. L. Rev. 1739, 1743, 1745 (2008).

Id. at 1745.

By overwhelmingly relying on Founding Era legal elites, Donohue and Stinneford implicitly accept their sources’ belief that ostensibly abstract terms like “unreasonable” and “unusual” should be read as legal terms of art. Stinneford discounts a contrary statement by Samuel Livermore during the First Congress because “Livermore . . . does not appear to have been within the mainstream of eighteenth-century thought regarding the usefulness of common law precedent generally.” Stinneford, supra note 335, at 1809. But while Stinneford is surely correct that Livermore was outside the mainstream of constitutional thought among legal elites , his view nonetheless reflected an important current in American constitutional thought.

To be sure, originalists might accept the more lawyerly Federalist position, leaving the Donohue and Stinneford positions undisturbed. But that choice, it is worth noting, would require accepting Federalist views of the First Amendment, too, thus undermining any plausible originalist basis for modern speech law.

FREEDOM OF EXPRESSION

Your voice matters. You have the right to say what you think, share information and demand a better world. You also have the right to agree or disagree with those in power, and to express these opinions in peaceful protests.

Exercising these rights – without fear or unlawful interference – is central to living in an open and fair society; one in which people can access justice and enjoy their human rights.

Yet governments around the world routinely imprison people – or worse – for speaking out, even though almost every country’s constitution refers to the value of ‘free speech’.

Governments have a duty to prohibit hateful, inciteful speech but many abuse their authority to silence peaceful dissent by passing laws criminalizing freedom of expression. This is often done in the name of counterterrorism, national security or religion. More recently, freedom of expression has come under threat by authorities clamping down on activists, NGOs and individuals helping refugees and migrants.

How governments tolerate unfavourable views or critical voices is often a good indication of how they treat human rights generally.

Amnesty International supports people who speak out peacefully for themselves and for others – whether a journalist reporting on violence by security forces, a trade unionist exposing poor working conditions or an indigenous leader defending their land rights against big business. We would similarly defend the right of those who support the positions of big business, the security forces and employers to express their views peacefully.

We consider anyone put in prison solely for exercising their right to free speech peacefully to be a prisoner of conscience and call for their immediate and unconditional release.

Why is freedom of expression important?

The right to freedom of expression is enshrined in Article 19 of the Universal Declaration of Human Rights, which sets out in broad terms the human rights that each of us has. It was later protected legally by a raft of international and regional treaties.

Defending freedom of expression has always been a core part of Amnesty International’s work and is vital in holding the powerful to account. Freedom of expression also underpins other human rights such as the right to freedom of thought, conscience and religion – and allows them to flourish.

It is also closely linked to freedom of association – the right to  form and join clubs, societies, trade unions or political parties with anyone you choose; and freedom of peaceful assembly – the right to take part in a peaceful demonstration or public meeting.

However, these very freedoms come under regular attack by governments that want to stifle criticism.

For example, in  Egypt  it is currently extremely dangerous to criticize the government. Over the course of 2018, the authorities arrested at least 113 individuals citing a host of absurd reasons including satire, tweeting, supporting football clubs, denouncing sexual harassment, editing movies and giving interviews.

Those arrested have been accused of “membership of terrorist groups” and “disseminating false news”. Detained without trial for months, those who eventually faced trial were sentenced by military courts, even though military trials of civilians, in Egypt as elsewhere, are inherently unfair.

Press freedom

A free press reporting on the issues that interest us and shape our lives is a key building block of any rights-respecting society. Yet in Azerbaijan, Türkiye and Venezuela to name just a few countries, journalists face repression and attacks.

In June 2019,  Tanzania’s parliament  fast-tracked the passing of the Written Laws Bill, which would entrench censorship, among other violations. Journalists in the country already operate within the tight confines of a media law that requires media houses to “broadcast or publish news or issues of national importance as government may direct”.  

In July 2019, the libel trial began in the Philippines against  Maria Ressa , the executive editor of online news outlet Rappler. Ressa, a prominent critic of President Rodrigo Duterte, was arrested in February 2019 on trumped up libel charges after Rappler published detailed investigations into some of the thousands of extrajudicial executions committed by police and unknown armed persons, with Duterte’s explicit encouragement, during drugs-related operations. Her case is widely seen as an attack by the government on press freedom.

During conflict, repression can get worse, such as in  Myanmar  where journalists investigating the killing of Rohingya men and boys by security forces in Rakhine State were arrested and jailed, before being freed under international pressure.

Freedom of speech

Freedom of speech, or freedom of expression, applies to ideas of all kinds, including those that may be deeply offensive. While international law protects free speech, there are instances where speech can legitimately restricted under the same law – such as when it violates the rights of others, or, advocates hatred and incites discrimination or violence.

However, any restrictions on freedom of expression must be provided by law, protect certain public interests or the rights of others and, be clearly necessary for that purpose. .

In 2018, Amnesty International published research that found that  Twitter is a platform where violence and abuse against women flourish , often with little accountability. Instead of the platform being a place where women can express themselves freely and where their voices are strengthened, Twitter leads women to self-censor what they post and limit their interactions. As a company, Twitter is failing its responsibility to respect women’s rights online by inadequately investigating and responding to reports of violence and abuse in a transparent manner.

The digital frontier

The digital world gives many more of us access to the information we need, including to challenge governments and corporations. Information is power and the internet has the potential to significantly empower the world’s seven billion people.

But freedom of expression today still often depends on wealth, privilege and our place in society. Those who are rich and powerful are seldom restricted in expressing their views.. Similarly, those who have their own laptops with broadband, have far greater access to information than those who have to walk miles to an internet café.

Increasingly, some states try to build firewalls around digital communications, or in the case of Egypt, Sudan and Zimbabwe among others, respond to mass street protests with an internet shutdown. Iran, China and Viet Nam have all tried to develop systems that enable them to control access to digital information. In India’s northern Kashmir region, mobile Internet and communications are suspended in response to any unrest. At Amnesty International, we are continually finding new ways to stop our website being blocked in China.

Governments are also using dangerous and sophisticated technologies to read activists and journalists’ private emails and remotely turn on their computers’ camera or microphone to secretly record their activities. In 2014, Amnesty and a coalition of human rights and technology organizations launched ‘ Detekt ’ – a simple tool that allows activists to scan their devices for surveillance spyware.

What is Amnesty doing to protect the freedom of expression?

Case study: poland and the right to protest.

Amnesty International has documented how people in  Poland  have taken to the streets to express their opinions despite restrictive legislation combined with heavy-handed policing, surveillance, harassment and prosecution which threaten to strangle the right to peaceful protest.

Since 2016, tens of thousands of people have protested against repressive legislation aimed at curbing women’s rights and undermining the independence of the judiciary. Protesters have routinely been met with a show of force and restrictive measures that infringe their right to be seen and heard. Hundreds have found themselves in police custody and facing lengthy court proceedings.

In parallel with tightening the laws affecting the exercise of the right to freedom of peaceful assembly, the government has vastly expanded the surveillance powers of law enforcement agencies with evidence that these expanded powers have been used against people engaged in organizing and participating in peaceful protests.

Case study: Surge in Vietnamese prisoners of conscience

In 2019 ,  Amnesty released shocking research showing that the number of prisoners of conscience unjustly jailed across  Viet Nam  had sharply risen by a third in signs of a growing crackdown on peaceful activism by lawyers, bloggers, human rights defenders, environmental activists and pro-democracy campaigners.

The prisoners’ detention conditions remain appalling with evidence of people being tortured and otherwise ill-treated, routinely held incommunicado and in solitary confinement, kept in squalid conditions and denied medical care, clean water and fresh air.

Many prisoners of conscience were jailed for comments made on social media platforms and were targeted using the vague and overly broad provisions of the penal code.

One prisoner of conscience is Tran Hoang Phuc. A pro-democracy and environmental activist, he was arrested in June 2017. Tried and convicted on charges of ‘conducting propaganda against the state’ for making and sharing videos perceived to be critical of the government on social media, he was sentenced to six years in prison, followed by four years under house arrest.

The Solution: What is Amnesty calling for?

• Prisoners of conscience around the world should be released immediately and unconditionally.
• All laws criminalizing people who speak out or protest peacefully, should be struck off the law books.
• Laws against hate speech or other incitement to discrimination and violence must not be used to repress peaceful dissent.
• People should have access to information, and the power of governments and companies to obtain information about individuals and organisations must be restricted.

Learn more about Freedom of Expression

Take our Human Rights Academy course, Speaking out for Freedom of Expression, to learn more and take action.

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What Does Free Speech Mean?

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law...abridging freedom of speech.”

Freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette , 319 U.S. 624 (1943).
• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines , 393 U.S. 503 (1969).
• To use certain offensive words and phrases to convey political messages. Cohen v. California , 403 U.S. 15 (1971).
• To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo , 424 U.S. 1 (1976).
• To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council , 425 U.S. 748 (1976);  Bates v. State Bar of Arizona , 433 U.S. 350 (1977).
• To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson , 491 U.S. 397 (1989);  United States v. Eichman , 496 U.S. 310 (1990).

Freedom of speech does not include the right:

• To incite imminent lawless action. Brandenburg v. Ohio , 395 U.S. 444 (1969).
• To make or distribute obscene materials. Roth v. United States , 354 U.S. 476 (1957).
• To burn draft cards as an anti-war protest. United States v. O’Brien , 391 U.S. 367 (1968).
• To permit students to print articles in a school newspaper over the objections of the school administration.  Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988).
• Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser , 478 U.S. 675 (1986).
• Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, __ U.S. __ (2007).

Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation. 

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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• Copy URL https://www.pbs.org/newshour/politics/experts-say-attacks-on-free-speech-are-rising-across-the-us

Experts say attacks on free speech are rising across the U.S.

BOISE, Idaho (AP) — In Idaho, an art exhibit was censored and teens were told they couldn’t testify in some legislative hearings. In Washington state, a lawmaker proposed a hotline so the government could track offensively biased statements, as well as hate crimes. In Florida, bloggers are fighting a bill that would force them to register with the state if they write posts criticizing public officials.

Meanwhile, bans on books and drag performances are growing increasingly common nationwide.

“We are seeing tremendous attacks on First Amendment freedoms across the country right now, at all levels of government. Censorship is proliferating, and it’s deeply troubling,” said Joe Cohn, legislative and policy director with the Foundation for Individual Rights and Expression.

“This year, we’re seeing a wave of bills targeting drag performances , where simply being gender nonconforming is enough to trigger the penalty. We’re also seeing a wave of bills regulating what can be in public or K-12 school libraries,” Cohn said. “On college campuses, we have been tracking data about attempts to get faculty members punished or even fired for speech or expression and the numbers are startling — it’s the highest rate that we’ve seen in our 20 years of existence.”

First Amendment rights had been stable in America for decades, said Ken Paulson, director of the  Free Speech Center  at Middle Tennessee State University, but in recent years many states have reverted to the anti-speech tactics employed by people like Sen. Joe McCarthy during the “Red Scare” of the early 1950s.

WATCH: Librarians in Louisiana at odds with conservative activists working to ban books

McCarthy and others tried to silence political opponents by accusing them of being communists or socialists, using fear and public accusations to suppress basic free speech rights. The term “McCarthyism” became synonymous with baseless attacks on free expression, and the U.S. Supreme Court has referred to the phenomena in several First Amendment-related rulings.

“We are seeing a concerted wave that we have not seen in decades,” said Paulson, highlighting states like Florida where Republican Gov. Ron DeSantis has pushed for legislation that would criminalize drag shows, limit what pronouns teachers can use for students, allow parents to determine what books can be in libraries and block some history classes entirely.

“It’s pretty mind-boggling that so many politicians are waving the flag of freedom while doing anything they possibly can to infringe on the free speech rights of Americans,” Paulson said.

Still, no one political group has a monopoly on censorship — aggression is increasing across the spectrum, Cohn said.

Washington state’s  bias hotline bill , which died in committee earlier this year, was sponsored by Democratic Sen. Javier Valdez and backed by several groups including the Anti-Defamation League, Urban League, Council on American-Islamic Relations and others. It aimed to help the state collect information about hate crimes and bias incidents and to provide support and compensation to victims at a time when  hate crime reports  are rising.

Opponents, including the Foundation for Individual Rights and Expression, said they feared it would chill protected speech because it encompasses both criminal behavior and offensively biased statements.

Hate speech can be damaging and repugnant, but is still generally protected by the First Amendment. The Department of Homeland Security and experts who study extremism have warned that hateful rhetoric can be seen as a call to action by extremists groups.

READ MORE: Arizona’s conservative superintendent sets up critical race theory hotline

Oregon created a similar bias hotline in 2019. It received nearly 1,700 calls in 2021, with nearly 60 percent of the reported incidents falling short of criminal standards, according to an annual report  from Oregon Attorney General Ellen Rosenblum’s office.

“People in power target their political adversaries, so who is being silenced really depends on where you are on the map and its individual context,” Cohn said.

Artist Katrina Majkut experienced that first-hand last week, when artworks she had shown in more than two dozen states over the past decade were unexpectedly censored at a small state school in Lewiston, Idaho.

Majkut uses embroidery to highlight and subvert historically narrow ideas of wifedom and motherhood. She was hired to curate an exhibit at Lewis-Clark State College focusing on health care issues like chronic illness, pregnancy and gun violence.

But March 2, a day before the show’s opening, Majkut and two other artists were told some of their work would be removed over administrator fears about running afoul of Idaho’s “No Public Funds for Abortion Act.”

The 2021 law bars state-funded entities from promoting abortion or taking other measures that could be seen as training or counseling someone in favor of abortion.

Majkut’s  cross-stitch depicting misoprostol and mifepristone tablets  — which can be used together to induce abortion early in pregnancy — was removed from the exhibit along with a wall plaque detailing Idaho’s abortion laws.

Four documentary video and audio works by artist Lydia Nobles that showed women talking about their own experiences with abortion were also removed. And part of artist Michelle Harney’s series of 1920s-era letters written to Planned Parenthood founder Margaret Sanger were stricken from the show.

“To be censored like that is shocking and surreal,” said Majkut, who designs her art to be educational rather than confrontational. “If the most even-keeled, bipartisan artwork around this topic is censored, then everything is going to be censored.”

READ MORE: Florida Republicans advance bills on gender identity, defamation

Logan Fowler, the spokesman for LCSC, said the school made the decision after consulting with attorneys about whether showing the art could violate the law. Republican Rep. Bruce Skaug, the author of the law, said Tuesday that it was not intended to “prevent open discussion” of abortion — only to prevent tax dollars from being used to promote it.

The art exhibit censorship comes just two months after another controversial decision by Skaug. As chairman of the Idaho House Judiciary and Rules Committee, Skaug announced in January that people under age 18 would not be allowed to testify in his committee. Another Republican committee chair soon followed suit.

Lawmakers have the ability to limit committee testimony, and often use those limits to keep the legislature’s work focused and timely. Still, the age-based speech restriction appeared to be a first for the state.

A group of teens took action, launching phone and email campaigns staging protests.

“There is a clear lack of foresight in politicians who seek to eliminate the voices of those who will one day elect and eventually supersede them,” a group of 32 high school student leaders wrote in a joint  opinion piece sent to news outlets  across the state. “We ask Idaho’s Republican leaders, what are you so afraid of?”

The lawmakers eventually modified their rules, allowing youth to testify as long as they have signed permission slips from a parent or guardian.

Skaug said the rule was necessary to ensure parents are aware if their kids are leaving school to testify at the Statehouse. He still intends to give priority to older residents when testimony time is limited, but said he’s not aware of any youth actually being denied the chance to testify so far this year.

For Cohn, the efforts in Idaho and elsewhere reflect the danger of trying to restrict the expression of people who hold opposing views.

“We have to be ever-vigilant if we want our culture of individual freedoms to prevail,” he said. “Bad ideas are better dealt with through debate and dialogue than government censorship.”

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• Freedom Of Speech

Freedom of Speech - Article 19(1)(a)

The Constitution of India guarantees freedom of speech and expression to all citizens. It is enshrined in Article 19(1)(a). This topic is frequently seen in the news and is hence, very important for the IAS Exam . In this article, you can read all about Article 19(1)(a) and its provisions.

Article 19(1)(a)

According to Article 19(1)(a): All citizens shall have the right to freedom of speech and expression.

• This implies that all citizens have the right to express their views and opinions freely.
• This includes not only words of mouth, but also a speech by way of writings, pictures, movies, banners, etc.
• The right to speech also includes the right not to speak.
• The Supreme Court of India has held that participation in sports is an expression of one’s self and hence, is a form of freedom of speech.
• In 2004, the SC held that hoisting the national flag is also a form of this freedom.
• Freedom of the press is an inferred freedom under this Article.
• This right also includes the right to access information because this right is meaningless when others are prevented from knowing/listening. It is according to this interpretation that the Right to Information (RTI) is a fundamental right.
• The SC has also ruled that freedom of speech is an inalienable right adjunct to the right to life (Article 21). These two rights are not separate but related.
• Restrictions on the freedom of speech of any citizen may be placed as much by an action of the state as by its inaction. This means that the failure of the State to guarantee this freedom to all classes of citizens will be a violation of their fundamental rights.
• The right to freedom of speech and expression also includes the right to communicate, print and advertise information.
• This right also includes commercial as well as artistic speech and expression.

You can read all about Fundamental Rights at the linked article.

Importance of Freedom of Speech and Expression

A basic element of a functional democracy is to allow all citizens to participate in the political and social processes of the country. There is ample freedom of speech, thought and expression in all forms (verbal, written, broadcast, etc.) in a healthy democracy.

Freedom of speech is guaranteed not only by the Indian Constitution but also by international statutes such as the Universal Declaration of Human Rights (declared on 10th December 1948) , the International Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms, etc.

• This is important because democracy works well only if the people have the right to express their opinions about the government and criticise it if needed.
• The voice of the people must be heard and their grievances are satisfied.
• Not just in the political sphere, even in other spheres like social, cultural and economic, the people must have their voices heard in a true democracy.
• In the absence of the above freedoms, democracy is threatened. The government will become all-too-powerful and start serving the interests of a few rather than the general public. 
• Heavy clampdown on the right to free speech and free press will create a fear-factor under which people would endure tyranny silently. In such a scenario, people would feel stifled and would rather suffer than express their opinions.
• Freedom of the press is also an important factor in the freedom of speech and expression.
• The second Chief Justice of India, M Patanjali Sastri has observed, “Freedom of Speech and of the Press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government, is possible.”
• In the Indian context, the significance of this freedom can be understood from the fact that the Preamble itself ensures to all citizens the liberty of thought, expression, belief, faith and worship.
• Liberal democracies, especially in the West, have a very wide interpretation of the freedom of speech and expression. There is plenty of leeways for people to express dissent freely.
• However, most countries (including liberal democracies) have some sort of censorship in place, most of which are related to defamation, hate speech, etc.
• The idea behind censorship is generally to prevent law and order issues in the country.

To know more in detail about the Constitution of India , visit the linked article

The Need to Protect Freedom of Speech

There are four justifications for freedom of speech. They are:

• For the discovery of truth by open discussion.
• It is an aspect of self-fulfilment and development.
• To express beliefs and political attitudes.
• To actively participate in a democracy.

Restriction on Freedom of Speech

Freedom of speech is not absolute. Article 19(2) imposes restrictions on the right to freedom of speech and expression. The reasons for such restrictions are in the interests of:

• Sovereignty and integrity of the country
• Friendly relations with foreign countries
• Public order
• Decency or morality
• Hate speech
• Contempt of court

The Constitution provides people with the freedom of expression without fear of reprisal, but it must be used with caution, and responsibly.

Freedom of Speech on Social Media

The High Court of Tripura has held that posting on social media was virtually the same as a fundamental right applicable to all citizens, including government employees. It also asserted that government servants are entitled to hold and express their political beliefs, subject to the restrictions laid under the Tripura Civil Services (Conduct) Rules, 1988.

In another significant judgment, the HC of Tripura ordered the police to refrain from prosecuting the activist who was arrested over a social media post where he criticized an online campaign in support of the Citizenship Amendment Act (CAA), 2019 and warned people against it. The High Court held that these orders are in line with the very essence of the Indian Constitution.

Hate Speech

The Supreme Court of India had asked the Law Commission to make recommendations to the Parliament to empower the Election Commission to restrict the problem of “hate speeches” irrespective of, whenever made. But the Law Commission recommended that several factors need to be taken into account before restricting a speech, such as the context of the speech, the status of the maker of the speech, the status of the victim and the potential of the speech to create discriminatory and disruptive circumstances.

Freedom of Speech in Art

In relation to art, the court has held that “the art must be so preponderating as to throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.” 

There are restrictions in what can be shown in cinemas and this is governed by the Cinematograph Act, 1952. You can read more about this and the Censor Board in India here.

Safeguards for Freedom of Speech and Expression under Article 19(2)

The Constitution of India guarantees freedom of speech and expression to all its citizens, however, these freedom are not absolute because Article 19 (2) of the constitution provides a safeguard to this freedom under which reasonable restrictions can be imposed on the exercise of this right for certain purposes. Safeguards outlined are discussed below-

Article 19(2) of the Indian constitution allows the state to make laws that restrict freedom of speech and expression so long as they impose any restriction on the –

• The state’s Security such as rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety.
• Interest id Integrity and Sovereignty of India – this was added by the 16 th  constitutional amendment act under the tense situation prevailing in different parts of the country. Its objective is to give appropriate powers to impose restrictions against those individuals or organizations who want to make secession from India or disintegration of India as political purposes for fighting elections.
• Contempt of court: Restriction can be imposed if the speech and expression exceed the reasonable and fair limit and amounts to contempt of court.
• Friendly relations with foreign states: It was added by the First Amendment Act, 1951 to prohibit unrestrained malicious propaganda against a foreign-friendly state. This is because it may jeopardize the maintenance of good relations between India and that state.
• Defamation or incitement to an offense: A statement, which injures the reputation of a man, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions.
• Decency or Morality – Article 19(2) inserts decency or morality as grounds for restricting the freedom of speech and expression. Sections 292 to 294 of the Indian Penal Code gives instances of restrictions on this freedom in the interest of decency or morality. The sections do not permit the sale or distribution or exhibition of obscene words, etc. in public places. However, the words decency or morality is very subjective and there is no strict definition for them. Also, it varies with time and place.

Need of these Safeguards of Freedom of Speech & Expression

• In order to safeguard state security and its sovereignty as a speech can be used against the state as a tool to spread hatred.
• To strike a social balance. Freedom is more purposeful if it is coupled with responsibility.
• Certain prior restrictions are necessary to meet the collective interest of society.
• To protect others’ rights. Any speech can harm a large group of people and their rights, hence reasonable restrictions must be imposed so that others right is not hindered by the acts od one man.

Right to Information

As mentioned before, the right to information is a fundamental right under Article 19(1). The right to receive information has been inferred from the right to free speech. However, the RTI has not been extended to the Official Secrets Act. For more on the RTI, click here .

Freedom of Speech – Indian Polity:- Download PDF Here

UPSC Questions related to Freedom of Speech

Yes, freedom of speech is a fundamental right guaranteed under Article 19(1)(a).

Article 19 of the Constitution guaranteed the right to freedom. Read more here .

The 7 fundamental rights are:

• Right to equality
• Right to freedom
• Right against exploitation
• Right to freedom of religion
• Cultural and educational rights
• Right to constitutional remedies

On what grounds can the State limit Freedom of Speech?

The state can limit Freedom of Speech on the following grounds

• Friendly Relations with Foreign Countries
• National Security
• Integrity and Unity of the State

You can know more about the topics asked in the exam by visiting the UPSC Syllabus page. Also, refer to the links given below for more articles. 

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Free Speech Belongs to All of Us

Personal perspective: restrict freedom of expression, and democracy suffers..

Updated May 19, 2024 | Reviewed by Ray Parker

• Several years ago, free speech was a hot topic. Many touted it as a tool of the far right.
• Now, with many protests related to the Middle East occurring, free speech is touted by political progressives.
• Protecting free speech rights includes expressions we agree with and those we disagree with.
• When we pick and choose which ideas should be supported by free speech rights, democracy itself takes a hit.

Several years ago, our campus dis-invited a conservative speaker who was set to speak on issues related to the then-upcoming 2016 presidential election. While I identify politically very differently from said speaker (proud member of the Working Families Party of New York right here, if you're wondering), I truly believe in the importance of freedom of speech and its several sibling concepts (e.g., academic freedom and open inquiry). As an academic who is interested in having ideas from a broad array of viewpoints be expressed and explored as part of knowledge creation, I care deeply about ensuring people's right to express themselves. In 2016, I agreed to head a task force on free speech for the campus to help our community deal with the dis-invite, which many folks found concerning.

At the time, many people were unhappy that said conservative speaker was re-invited. And I think that the free speech task force that I headed may not have been the most popular entity on campus at the time. But regardless of how ardently I personally disagreed with pretty much everything that this particular speaker said (who did end up speaking on campus eventually), to this day, I stand by the basic principle of freedom of speech as a basic right in a democracy. Allowing him to speak at a public university within standard parameters that surround free speech, such as those pertaining to safety, defamation, and genuine hate speech, was, as I see it, simply the right thing to do. And if people disagreed with his points, then this forum would allow them to raise their concerns directly with him in a public manner. And that is exactly what happened.

Back then (about eight years ago now), supporting free speech was often conflated in people's minds with some kind of far-right agenda—an agenda that is often antithetical to ideological norms on many campuses today (see Burmila, 2021). I heard people argue that free speech needed to have limits, that it is an inherently unfair concept as some people in society have more opportunities to express themselves than do others, and that free speech was something of a tool of the far-right to maintain some sort of status quo. While I am actually sympathetic to some of these concerns, at the end of the day, a democracy without the right to free speech is not really a democracy at all in my book.

A lot has changed in eight years. Without getting into too much of the details, the current war between Israel and Hamas has, throughout the world, it seems, given the topic of free speech front-and-center stage once again.

However, it is interesting to see that the politics of free speech seem to have changed—partly as a matter of convenience. On so many campuses, several students and other activists this past semester chose to exercise their free speech rights to make statements against much of the brutality and horror that has been launched as part of that war. Students, professors, and all kinds of activists have been taking to activism (e.g., assembling to express their opinions, carrying picket signs that express their views, etc.). As an advocate of free speech (see a recent paper that I (along with several others) coauthored related to this issue, Clark et al., 2023 ), to the extent that they are carried out peacefully and safely, I support these individuals in their efforts—regardless of my stance on the issues that they are concerned about. In other words, to my mind, free speech protections and rights must be distributed across the board (again, keeping in mind standard limitations pertaining to such issues as inciting violence, defamation, libel, etc.).

The Free Speech Irony of 2024

It is more than a little interesting to me that the same people who argued against free speech when it came to dis-inviting conservative speakers seem to be adamantly standing by the tenets of free speech and First Amendment rights when it comes to supporting expressions about the Hamas/Israel war on campus. By and large, these campus protests (conspicuously documented at such campuses as UCLA and Columbia—along with many others) have taken a pro-Palistinean viewpoint. And given that more than 30,000 Palestinians have lost their lives in this conflict (with a large proportion of the deceased having been children), it is not hard to understand the outrage and concerns that are being expressed (although, of course, this is a famously complex issue with deep historical and political roots—all of which is beyond the purview of this piece). In any case, a true advocate of freedom of speech should be blind to any particular viewpoint that is being expressed. That is the whole idea of free speech in the first place.

Many academics who decried free speech several years ago when conservative speakers were being dis-invited from campuses left and right are now citing the importance of free speech when it comes to allowing for peaceful protests and demonstrations that are largely consistent with their viewpoints.

When It Comes to Free Speech, We Cannot Pick and Choose

When people support free speech on a convenience basis, free speech rights become lost. The First Amendment of the Constitution does not specify that freedom of speech applies to some viewpoints but not to others. We may disagree ardently with someone's viewpoint. But disallowing that viewpoint to be expressed—particularly in public, government-owned spaces (such as campuses of state universities)—has the capacity to reduce freedom of expression for all of us down the line.

Then They Came for Me

This renowned quote, "... then they came for me ..." is often attributed to Martin Niemöller in reference to the atrocities of the Holocaust. This point, which speaks for itself in these five simple yet chilling words, bears importance on the issue of reducing free speech rights. The second that people start to pick and choose what ideas are allowed to be expressed freely and what ideas are not, we all (perhaps without realizing it) start down a slippery slope. If a strong and vocal group successfully shuts down free expression regarding Issue X, that could come back and bite those same individuals at a later point when they are trying to express their viewpoints on Issue Y. The second that people in a democracy start to pick and choose what viewpoints are allowed to be expressed freely and what viewpoints are not, down the line, free speech rights end up being diluted for everyone.

When it comes to efforts to reduce the free speech of others, people shouldn't be surprised that, at some point, similar efforts may well be directed at them. In other words, if you actively take steps to reduce the free speech of others, and free speech rights become diluted in general, the "anti free speech police" may well come for you one day.

Bottom Line

I feel fortunate to live in a democracy. It is not perfect. Not by any means. But I find myself as someone with a lot to say on lots of topics and I am truly grateful for free speech rights (and its sibling that we call academic freedom ). Being disallowed to express certain perspectives to study certain topics or to present certain research findings is nothing short of censorship.

When it comes to freedom of expression, whether we like it or not, we need to realize that this right applies not only to our own viewpoints or ideas but also to the viewpoints and ideas of those with whom we may disagree quite ardently. The second that our communities start to limit freedom of expression for selected viewpoints, the rights of freedom of expression for everyone become diluted. And our democracy actually becomes less of a democracy. And I would guess that most people don't want that.

———————————————-

Note: This piece was partly inspired by conversations with SUNY New Paltz political scientist, Dr. Dan Lipson.

Burmila E. Liberal Bias in the College Classroom: A Review of the Evidence (or Lack Thereof). PS: Political Science & Politics . 2021;54(3):598-602. doi:10.1017/S1049096521000354

Clark CJ, Jussim L, Frey K, Stevens ST, Al-Gharbi M, Aquino K, Bailey JM, Barbaro N, Baumeister RF, Bleske-Rechek A, Buss D, Ceci S, Del Giudice M, Ditto PH, Forgas JP, Geary DC, Geher G, Haider S, Honeycutt N, Joshi H, Krylov AI, Loftus E, Loury G, Lu L, Macy M, Martin CC, McWhorter J, Miller G, Paresky P, Pinker S, Reilly W, Salmon C, Stewart-Williams S, Tetlock PE, Williams WM, Wilson AE, Winegard BM, Yancey G, von Hippel W. Prosocial motives underlie scientific censorship by scientists: A perspective and research agenda. Proc Natl Acad Sci U S A. 2023 Nov 28;120(48):e2301642120. doi: 10.1073/pnas.2301642120. Epub 2023 Nov 20. PMID: 37983511.

Glenn Geher, Ph.D. , is professor of psychology at the State University of New York at New Paltz. He is founding director of the campus’ Evolutionary Studies (EvoS) program.

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Justice Alito warns of declining support for freedom of speech on college campuses

Conservative Supreme Court Justice Samuel Alito on Saturday warned that support for freedom of speech is "declining dangerously," especially on college campuses, as part of a commencement address he delivered at the Franciscan University of Steubenville, a Catholic college in Ohio.

His remarks appeared to reference unrest at various college campuses around the country arising from protests against Israel's military operations in Gaza.

“Right now in the world outside this beautiful campus, troubled waters are slamming against some of our most fundamental principles," Alito said.

"Support for freedom of speech is declining dangerously," he added, especially on college campuses, where the exchange of ideas should be most protected.

"Very few colleges live up to that ideal. This place is one of them … but things are not that way out there in the broader world," Alito said.

But Alito's support for free speech has its limits — he was a notable sole dissenter when the Supreme Court in 2011 ruled 8-1 that members of the conservative Westboro Baptist Church had a free speech right to picket the funeral of a military veteran.

"Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he wrote in dissent.

Alito, who is Catholic, has frequently raised the alarm about freedom of religion being under attack and has often voted in favor of expanding religious rights.

"Freedom of religion is also imperiled," he told the graduating students. "When you venture out into the world, you may well find yourself in a job, or community or a social setting when you will be pressured to endorse ideas you don’t believe, or to abandon core beliefs. It will be up to you to stand firm."

The Supreme Court is poised in the coming weeks to issue major rulings on a series of contentious issues including abortion, gun rights and whether former President Donald Trump is immune from prosecution for his attempts to overturn the results of the 2020 election.

Alito, the author of the 2022 ruling that overturned the landmark Roe v. Wade, is one of several justices making public appearances while the court prepares its rulings.

On Friday, fellow conservative Justice Clarence Thomas spoke at a judicial conference in Alabama, where he decried the "nastiness and the lies" he has faced.

He and his wife, conservative political activist Ginni Thomas, have both been in the spotlight in recent years. He has been accused of failing to follow ethics rules, while she was criticized for backing Trump's effort to challenge election results.

At another judicial conference in Texas, conservative Justice Brett Kavanaugh said Friday that Supreme Court rulings that are unpopular when issued can later become part of the "fabric of American constitutional law."

Lawrence Hurley covers the Supreme Court for NBC News.

Gaza campus protests: what are students’ free speech rights and what can universities do?

Lecturer in Political Theory and Philosophy, Queen's University Belfast

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Suzanne Whitten does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Students expressing solidarity with Palestinians and protesting Israel’s war in Gaza have set up encampments on campuses around the UK. Around 15 encampments have emerged in Oxford , Cambridge , Edinburgh , Warwick Manchester and others. They’ve also emerged in other countries including France and Ireland .

Broadly, students are calling for transparency over and divestment from universities’ financial links with Israeli companies (particularly those involved in the arms industry). They are demanding university leaders cut ties with Israeli universities, increase resources (including scholarships for Palestinian students and make long-term commitments relating to the rebuilding of higher education in Palestine.

The encampments follow similar action at more than 140 universities in the US. There, scenes of police arresting protesters have sparked intense debate about when (if ever) it is permissible to limit the free expression of students.

Read more: US student Gaza protests: five things that have been missed

Universities have a difficult balance to strike between protecting student speech rights and ensuring campus safety.

In the US, public universities (as “arms of government”) are prevented from interfering with free speech under the constitution’s first amendment. While this doesn’t apply in the same way to private universities, most have agreed to uphold policies that closely resemble it. These rights must be balanced against reasonable considerations about the time, place and manner of the speech, as well as civil rights laws against harassment.

The UK does not have the same free speech protections, but many university leaders have made clear that their institutions support freedom of expression . They have reminded students of their duties to ensure that protest activities remain lawful and do not risk the safety of others.

They have encouraged students to follow university policy , and be mindful of other students, staff and members of the public. This generally means that they should not obstruct their access to work or get in the way of their education.

Rishi Sunak met with 17 vice-chancellors and representatives from the Union of Jewish Students (UJS), seeking reassurance that any antisemitism arising from the protests would be swiftly dealt with. And the education secretary, Gillian Keegan, called for vice-chancellors to “show leadership” to ensure that campuses are a safe place for all students.

Are the protests legal?

Protests that take place on university campuses in the UK are considered legal exercises of the right to freedom of expression. The rights of freedom of expression and freedom of assembly are protected by the European Convention on Human Rights, which is enshrined in UK law under the Human Rights Act .

These rights are further reinforced by a 1986 UK education law , which requires universities to take “reasonably practicable” steps to protect freedom of speech on campus. This includes permitting and facilitating the right to protest.

There are notable exceptions. In England and Wales, speech that incites violence is considered unlawful, as is harassment on the basis of protected characteristics (race, religion, sexuality and so on). The law is slightly different in Scotland and Northern Ireland .

Expressed support for one of the UK government’s 79 proscribed organisations (including Hezbollah and Hamas) is also criminalised by the Terrorism Act .

When it comes to semi-permanent occupations, duties to facilitate freedom of expression will be in tension with universities’ obligations to keep students and staff safe. Sally Mapstone, the president of the vice-chancellors’ group Universities UK, said universities “may need to take action ” if encampments interfere with the ability to take exams, graduate or go about other business.

In the past, universities have ended occupations by applying for a “possession order” from the High Court. This can lead to students being removed by bailiffs, as happened in March 2023 when the University of Bristol evicted students taking part in a rent strike.

In April 2024 , Bristol Students Occupy for Palestine ended a four-week occupation of the university’s executive management building after they were served with a possession order.

Any universities that take this route would need to show that they have considered protestors’ freedom of expression and assembly rights , and that these have been outweighed by other competing obligations.

The encampments could also risk breaching the Police Crime Sentencing and Courts Act and the Public Order Act, introduced in 2022 and 2023. These controversial laws limit noisy protests and make it unlawful to cause “public nuisance”.

They also ban protests that cause serious disruption to the life of the community , including by tunnelling , locking-on and taking part in slow-walking protests . Again, any interventions (from either the university or the police) must be weighed against the freedom of expression rights of protesters.

Successful negotiations

So far, some of the protests have been successful. Management at Goldsmiths, University of London agreed to protesters’ demands, including investing in a number of scholarships for Palestinian students and reviewing the university’s investment policy. The encampment at Trinity College Dublin has ended after the university agreed to divest from “Israeli companies that have activities in the Occupied Palestinian Territory and appear on the UN blacklist in this regard”.

The University of York has also agreed to divest from weapons manufacturers. Other universities have established meetings between protesters and management, though most negotiations are still in the early stages.

Apart from upholding their legal obligations, universities should maintain open lines of dialogue with protesters. Doing so is not only essential from a safety perspective, but ensures that all are able to exercise their rights effectively. So far, most universities have been clear about their commitment to free expression, acknowledging lawful protest as a fundamental component of university life.

The free exchange of ideas will often make some people feel uncomfortable . But speech which harasses or threatens others is not only unlawful, it prevents them from taking part in university life as equals. Universities must also offer accessible channels of complaint for students and staff who have experienced abuse from others on campus.

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I’m a conservative student. Freedom of speech protects pro-Palestinian protesters too.

Those who curtail objectionable speech often naively believe that by doing so, they’re stopping the spread of harmful ideas. but in practice, censorship often fans the flames it’s meant to extinguish..

I’m a member of the College Republicans and the Federalist Society who’s interning at the Cato Institute this summer. I’ve been on Fox News numerous times to speak out against affirmative action in college admissions. I also oppose the crackdown on peaceful pro-Palestinian voices at universities across the country.

Last week, at the urging of House Republicans, Columbia University called in the New York police to arrest pro-Palestinian protesters who were protesting Israel’s attacks on Gaza in a common outdoor space, and its president mulled over the possibility of punishing students who use the “from the river to the sea” chant that some view as antisemitic. The University of Southern California announced it will not allow its valedictorian — a Muslim woman who supports Palestinians — to speak at its commencement, caving due to concerns over a potentially violent backlash to her views. At the University of Texas at Austin, peaceful pro-Palestinian protesters faced mass arrests at the behest of the Republican governor.

To be clear, some protesters have gone beyond expressing their outrage with only their voices, and those engaged in violence, harassment, and the occupation of secure buildings deserve to be arrested — the rights of protesters end when the rights of others are infringed upon. But the systematic censoring of activists by those claiming the mantle of conservatism has a certain tinge of irony; for years, conservatives have been outspoken advocates of free speech at universities, aware that those on the right often bear the brunt of campus censorship. For some, the defense of free expression was little more than partisan gamesmanship used to push a right-wing agenda. But for me, it always stemmed from the deeper conviction that free speech is essential to academic inquiry and human progress.

When certain ideas are off-limits, it’s impossible for the scientific method — a university’s primary fact-finding instrument — to function effectively. Galileo’s theory that the earth revolved around the sun was ultimately validated, but his imprisonment for espousing it held back human knowledge. A thriving university exists in relentless pursuit of the truth, and that process requires the open exchange of all viewpoints — not the suppression of ideas deemed too scandalous. When ideas are judged on their merits, the bad ones invariably fail under the weight of opposing scrutiny; vetoes by administrative fiat are never required.

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It is true that many, including myself, find aspects of pro-Palestinian rhetoric deeply offensive, including a public statement by Columbia Students for Justice in Palestine that characterized Hamas’s Oct. 7 attack as a justified “counter-offensive.” But that fact alone makes a weak case for censorship; inherently, offensiveness is a subjective metric that exists only in the eye of the beholder. As such, it’s too easy for bad-faith actors to cry crocodile tears and use the doctrine of political correctness as a cudgel, silencing their ideological opponents and rendering themselves immune to criticism.

But even ideas that cause genuine offense can still represent the sincerely held political outlook of others. Pro-Palestinian activists are undoubtedly offended by supporters of Israel whom they see as genocide apologists; if they controlled a university’s levers of power, pro-Israel advocates would be shut down per this rationale. Allowing a cadre of administrators to unilaterally dictate the parameters of political discourse is so disastrous precisely because of its chilling effect on dissenting opinions; for this reason, even the avowedly anti-racist American Civil Liberties Union regularly litigates on behalf of Klansmen and Nazis in First Amendment cases to ensure that free speech remains a safeguarded right for all, not a privilege doled out by those at the top.

This is not to say that the ongoing protests should be brushed aside as inconsequential noise or that Jewish students are wrong to feel uneasy or hurt. The fact that the protests have caused so much pain and anger suggests the opposite: Words are uniquely powerful in their capacity to inspire, anger, evoke joy, stoke fear, or offend. Speech’s proven record of changing hearts and minds and sparking backlash is exactly what makes wrenching it from a university’s body politic and ceding it to unaccountable bureaucrats so dangerous; under such a regime, those elite few have free rein to manipulate, propagandize, spread falsehoods, and advocate their own interests, with no countervailing forces to keep them in check.

Those who curtail objectionable speech often naively believe that by doing so, they’re stopping the spread of harmful ideas. But in practice, censorship often fans the flames it’s meant to extinguish, with the poor optics of suspensions and arrests drawing otherwise unwarranted publicity and media attention to the movement meant to be sidelined. Punitive actions toward those protesting peacefully are also almost inevitably wielded as a cause célèbre when protest organizers harness the outpouring of righteous indignation to mobilize more supporters for their cause. With undergraduate protest movements so commonplace these days, the Columbia encampment would probably have been little more than a blip in the news cycle if not for the highly dramatic showdown with police officers clad in riot gear — certainly a mistake by Columbia’s leaders if their aim was to quell the disruption.

The modern university already boasts an abysmal free speech record; as someone derided by my Brown University classmates for being “the Fox News kid,” I know this firsthand. The solution is not for conservatives to take a page out of the left’s playbook and root out views we find disagreeable — this only further imperils conservative students by empowering universities to take harsh measures against those with unpopular opinions. Rather, we must stand firm on principle and set the precedent that free speech protections are absolute. Defending the free speech rights of those we disagree with can be hard — but only when freedom of speech protects everyone can we rest assured knowing it protects us.

Alex Shieh is a contributing Globe Opinion writer and a student at Brown University. Follow him at @alexkshieh .

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Justice Alito Warns of Threats to Freedom of Speech and Religion

In a commencement ceremony at a Catholic university, the justice said that fundamental principles were in peril at universities and American society.

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By Adam Liptak

Justice Samuel A. Alito Jr. warned on Saturday that freedom of speech was under threat at universities and that freedom of religion was in peril in society at large.

“Troubled waters are slamming against some of our most fundamental principles,” he said.

He made his remarks at a commencement ceremony at the Franciscan University of Steubenville in Ohio, a Catholic institution.

“Support for freedom of speech is declining dangerously, especially where it should find deepest acceptance,” he said.

A university, he said, should be “a place for reasoned debate.” But he added that “today, very few colleges live up to that ideal.”

The same is true, he said, for tolerance of religious views in society generally.

“Freedom of religion is also imperiled,” he said. “When you venture out into the world, you may well find yourself in a job or a community or a social setting when you will be pressured to endorse ideas you don’t believe or to abandon core beliefs. It will be up to you to stand firm.”

In other settings , Justice Alito has given a specific example, complaining that people opposed to same-sex marriage on religious grounds are sometimes treated as bigots.

As the Supreme Court prepares to issue major decisions in the coming weeks, including ones on a criminal case against former President Donald J. Trump, abortion, gun rights and social media, members of its conservative majority have fanned out across the nation to offer varied takes on their work.

At a judicial conference on Friday in Alabama, Justice Clarence Thomas spoke bitterly about being subjected to what he called “the nastiness and the lies.” The justice has been criticized for receiving lavish gifts and for failing to recuse himself from cases arising from the Jan. 6, 2021, attack on the Capitol despite his wife’s efforts to overturn the 2020 election.

That same day, at a judicial conference in Texas, Justice Brett M. Kavanaugh struck a sunnier tone , speaking of his dedication to neutral principles and the court’s efforts to find consensus.

Those appearances were wide-ranging public conversations, while Justice Alito’s speech was brief and general. But it was laced with the justice’s characteristic pessimism.

“It’s rough out there,” he said. “And, in fact, I think it is rougher out there right now than it has been for quite some time.”

He received an extended standing ovation when a speaker introducing him noted that he had written the majority opinion in Dobbs v. Jackson Women’s Health Organization, the 2022 decision that overruled Roe v. Wade and eliminated the constitutional right to abortion it had established.

In his speech, Justice Alito said that respect for precedent, in law and life, was important.

“If you read almost any opinion issued by a court in this country, you will see that the text is full of citations to past court decisions,” he said. “Those decisions, which we call precedents, are given great respect. They are not written in stone. Sometimes they must be changed, but they are not to be lightly discarded.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak