The Soul of the First Amendment

Floyd Abrams

• Publisher: Yale University Press
• Year: 2017
• ISBN:
  9780300227529
• Topic: Politik & Internationale Beziehungen
• Subtopic: Bürgerrechte in der Politik

The nation's most celebrated First Amendment lawyer"explores the American right to free speech in this thoughtful and concise volume" ( Publishers Weekly ). The right of Americans to voice their beliefs without government approval or oversight is protected under what may well be the most honored and least understood addendum to the US Constitution—the First Amendment. Floyd Abrams, a noted lawyer and award-winning legal scholar specializing in First Amendment issues, examines the degree to which American law protects free speech more often, more intensely, and more controversially than is the case anywhere else in the world, including democratic nations such as Canada and England. In this lively, powerful, and provocative work, the author addresses legal issues from the adoption of the Bill of Rights through recent cases such as Citizens United. He also examines the repeated conflicts between claims of free speech and those of national security occasioned by the publication of classified material such as was contained in the Pentagon Papers and was made public by WikiLeaks and Edward Snowden. "Abrams's engaging and plain-spoken reflections will be of interest to those already steeped in constitutional law as well as young readers curious about the nation's founding ideals... For Abrams, one inescapable truth applies across the history of First Amendment disputes. To allow the government to determine whose speech can be regulated... is, as [his] fascinating history shows, literally to play with fire."— The Wall Street Journal "He dives into historic and contemporary controversies that test our adherence to these principles, noting, 'Speech is sometimes ugly, outrageous, even dangerous.'"— The Washington Post

The Soul of the First Amendment

I

When the drafting of the United States Constitution was completed in Philadelphia early in September 1787, James Madison was pleased. The Articles of Confederation agreed upon by the states at the time of the Revolution had created an alliance of entities freed from British rule but not a functioning national government. The Framers of the Constitution, led by Madison, did that. In doing so, they made no effort to match the grace or passion of Thomas Jefferson’s glowing revolutionary rhetoric in the Declaration of Independence of the previous decade. No inalienable rights were referred to in the new document, no paeans to human rights offered. The Constitution’s language, as the historian Clinton Rossiter observed, was “plain to the point of severity, frugal to the point of austerity, laconic to the point of aphorism.” It was not a prose-poem but a blueprint, one devoted to establishing a newly re-created and empowered government and setting forth how it would work. And it had been agreed upon after what John Adams characterized as “the greatest single effort of national deliberation that the world has ever seen.” Madison’s satisfaction at the result is reflected in a letter he wrote to Jefferson, his friend and mentor, then the American ambassador to France, which observed that “it is impossible to consider the degree of concord which ultimately prevailed as less than a miracle.”

One topic on which there had been nearly complete concord was this: there would be no bill of rights in the Constitution. When a vote was taken on the subject, ten states voted against it; not one voted for it. The record of the Constitutional Convention summarizes the vote starkly: “On the question for a committee to prepare a Bill of Rights: New Hampshire no. Massachusetts, absent. Connecticut, no. New Jersey, no. Pennsylvania, no. Delaware, no. Maryland, no. Virginia, no. North Carolina, no. South Carolina, no. Georgia, no.”

When two delegates, after the vote, sought a declaration stating “that the liberty of the press shall be inviolably observed,” Roger Sherman responded that since “the power of the Congress does not extend to the press,” it was unnecessary to specify that the press was protected against the government. By a seven-to-four vote, the Convention rejected the motion.

What may have seemed obvious enough to the delegates was far less so to others. Jefferson himself was appalled that the newly empowered national government would not be explicitly limited in its authority by specific prescriptions. It “astonishes me,” Jefferson wrote, that “our countrymen . . . should be contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases, freedom of religion, freedom of the press,” and other rights. “A bill of rights,” he wrote to Madison, “is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.” Another Jeffersonian missive stated that he had “disapproved from the first moment . . . the want of a bill of rights to guard liberty against the legislative as well as the executive branches of the government.”

Critics of the newly drafted Constitution were alarmed at the absence of a bill of rights. Patrick Henry, who opposed ratification of the Constitution before the Virginia legislature, observed that “a Bill of Rights may be summed up in a few words.” If they are not used, Henry warned, “the officers of Congress may come upon you, fortified with all the terrors of paramount federal authority.” In South Carolina, James Lincoln complained that he “would be glad to know why, in this Constitution, there is a total silence with respect to the liberty of the press. Was it forgotten? Impossible! Then it must have been purposely omitted; and with what design, good or bad, he left the world to judge. The liberty of the press was the tyrant’s scourge—it was the true friend and firmest supporter of civil liberty; therefore why pass it by in silence?” In New York, Cincinnatus, one of a number of anonymous critics of the newly drafted Constitution, argued that “not only [is] some power . . . given in the constitution to restrain, and even to subject the press,” but that the power to do so was “totally unlimited; and may certainly annihilate the freedom of the press, and convert it from being the palladium of liberty to become an engine of imposition and tyranny. It is an easy step from restraining the press to making it place the worst actions of government in so favorable a light, that we may groan under tyranny and oppression without knowing from whence it comes.”

Responses from opponents of including a bill of rights in the Constitution offered views similar to those uttered by Sherman during the Constitutional Convention itself. Why, Alexander Hamilton responded, in much-quoted questions he posed in Federalist, No. 84, should the charter of the newly reorganized government “declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press should not be restrained, when no power is given by which restrictions may be imposed?” In fact, Hamilton argued, “the constitution is itself in every rational sense, and to every useful purpose, a bill of rights.”

Other opponents of adding a bill of rights offered similar views. Where, Virginia Governor Randolph asked, “is the page” in the Constitution “where [freedom of the press] is restrained? If there had been any regulation about it, leaving it insecure, then there might have been reason for clamors. But this is not the case. If it be, I again ask for the particular clause which gives liberty to destroy the freedom of the press.” Others mocked the very notion of a bill of rights. “No bill of rights,” Roger Sherman observed, “ever yet bound the supreme power longer than the honey moon of a newly married couple.” And why, John Dickinson asked, was a bill of rights needed? “Do we want to be reminded, that the sun enlightens, warms, invigorates, and cheers? or how horrid it would be, to have his blessed beams intercepted, by our being thrust into mines or dungeons?” Noah Webster, tongue deeply in cheek, suggested that if a list of inalienable rights were to be added to the Constitution, it should include a clause stating that “every body shall, in good weather, hunt on his own land, and catch fish in rivers that are public property . . . [and] that Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent his lying on his left side, in a long winter’s night.”

Madison had initially opposed the inclusion of a bill of rights, disparaging any such document as a useless “parchment barrie[r]” which “will never be regarded when opposed to the decided sense of the public.” By the time Congress met in 1789, however, he had changed his strategy, if not his views. On a personal level, he had been shocked almost to have been defeated for reelection to the House by James Monroe, his later successor as president, who had actively supported the adoption of a bill of rights. At the same time, opponents of ratification of the Constitution were using the absence of a bill of rights as a basis for rejecting it and seemed likely to be preparing crippling amendments of their own that might make ratification significantly less likely. It would be better, he wrote to a friend, that amendments would “appear to be the free gift of the friends of the Constitution” rather than having been “extorted” from them by its enemies. Madison responded by shifting his position from opponent to draftsman, preparing the first draft of the document and introducing it to the House of Representatives of the First Congress with the tepid assertion that, given public concern about its absence, its inclusion offered “something to gain, and, if we proceed with caution, nothing to lose.” As initially proposed on June 8, 1789, the equivalent of what became the First Amendment’s language about freedom of speech and press reads generally similarly to what was finally adopted.

Except in one significant respect, Madison’s first proposal on freedom of expression, submitted to the House, was phrased this way: “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.” By the time, on September 25, that the Senate had weighed in and the two Houses had agreed on language, what became the First Amendment was phrased in a manner that was couched not as affirmatively assuring the people of their rights but, in indelibly negative language, as assuring that Congress could not strip the public of those rights. The words “Congress shall make no law” were chosen to introduce the First Amendment, a decision that would lead the Supreme Court throughout American history to rule that the First Amendment barred only governmental, not private, suppression of speech.

What is most striking today when reading the debates over the adoption of a bill of rights is that while there was fiery disagreement about whether to adopt such a document at all, little of it appears to have been about what those rights were. Instead, the debates focused almost exclusively on whether it was necessary or even useful to add to the Constitution as it had been drafted in Philadelphia, either in its text or separately as amendments, any list of prohibited government actions at all. In the end, those who believed that without a bill of rights the newly empowered federal government might well overstep its bounds into areas of personal liberty carried the day, and what would eventually be viewed, as historian Joseph Ellis put it, as the nation’s “secular version of the Ten Commandments” became binding law.

Inevitably, the language chosen for the Bill of Rights has been subject to multiple, sometimes conflicting interpretations. In addition, the passage of time has led to disputes about topics that would have been inconceivable in the eighteenth century. Who, for example, can speak with confidence today about what the Framers would have thought about net neutrality, videogames, or algorithms?

One view of the Framers, however, could hardly be clearer. The “great object” of bills of rights, Madison observed when he first introduced the Bill of Rights in the House of Representatives, was “to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.” “Courts of justice,” Madison optimistically predicted, would serve as “impenetrable barriers” to violations. Later, in the debates over the adoption of the Bill of Rights, Madison went further. With its adoption, he said, “the right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government.” The imposition of strict limits on governmental authority over religion, speech, and press was the central purpose of the First Amendment. It is what the First Amendment is about.

That theme has been repeated by jurists with the widest divergence of views on other matters. Supreme Court Justice Robert H. Jackson, writing in 1945, put it this way: “The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field, every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” Justice Hugo Black, writing in 1961, observed that “the very reason for the First Amendment is to make the people of the country free to think, speak, write and worship as they wish, not as the Government commands.” Justice William O. Douglas, in 1973, stated that “the struggle for liberty has been a struggle against Government. The essential scheme of our Constitution and Bill of Rights was to take Government off the backs of people.” Justice John Paul Stevens observed in 1985 that “the First Amendment was adopted to curtail Congress’ power to interfere with the individual’s freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience.” Justice Anthony Kennedy wrote in 2002 that “First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” Chief Justice John Roberts, in 2010, stated that “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”

So clearly established is the notion that the Bill of Rights in general and the First Amendment in particular exist to protect against the government that it would be easy to fill pages with similar quotations. But in recent years, that very notion has come under increasing attack from liberal critics of expansive First Amendment rulings of the Roberts Court. There is historical irony in this. It was not many years ago that it could fairly be said, in the words of University of Delaware political scientist Wayne Batchis, that “contemporary liberalism seemed to consistently stand on the side of the First Amendment, even when the short-term costs were perceived to be relatively high,” while “political and jurisprudential conservatives, in contrast, saw a First Amendment that was less of an absolute—a guarantee that could be balanced more comfortably against the democratic needs of civility and morality in some areas or evaded entirely in others.” Indeed, for most of American history, the First Amendment has generally served as what Yale Law School professor Jack Balkin has referred to as “the friend of left-wing values, whether it was French émigrés and Republicans in the 1790s, abolitionists in the 1840s, pacifists in the 1910s, organized labor in the 1920s and 1930s, or civil rights protesters in the 1950s and 1960s.” In all these instances, as well as in more recent ones in which efforts were made to enjoin the press, to censor books, and to limit political expression by deeming criminal the burning of the American flag, opposition to broad First Amendment protections tended to come from the right.

Times have changed, however, and so have the issues raised before the Supreme Court dealing with freedom of expression. In some cases involving particularly obnoxious speech—the filming of animals being tortured and killed, for example, or vile demonstrations denouncing dead American soldiers on the days of their funerals—the Court has been all but unanimous in protecting loathsome speech to a degree that would be unimaginable elsewhere in the world. In an increasing number of cases, however, ranging from ones involving the rights of those who oppose abortions to have their say close to abortion clinics, to individuals who refrain from joining public employee unions and maintain that they should not be obliged to pay any dues to them, to individuals and companies who object to limits on their independent expenditures supporting candidates for public office, and to companies that engage in commercial speech, it has been the more conservative members of the Court who have been championing more expansive First Amendment protections. In those cases, more liberal jurists have not only differed with their conservative colleagues about the scope of the First Amendment but often taken positions that could more generally limit its impact.

A stark example is the Supreme Court’s ruling in 2000 in a case involving a Colorado statute that made it criminal for anyone within one hundred feet of a health-care facility—that is to say, a facility in which abortions occurred—to “knowingly approach” another person within eight feet, without her consent, to engage in “oral protest, education, or counseling.” As correctly summarized by the American Civil Liberties Union, in its amicus curiae brief supporting a First Amendment challenge to the law, it thus made criminal “advocacy . . . that does not threaten to impede or obstruct persons entering or leaving the clinic, including the simple act of handing out a leaflet.” For many years before, the Court had repeatedly held that even speech viewed as offensive was protected by the First Amendment and that “our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”

In this case, Hill v. Colorado, the Court, in a six-to-three opinion of Justice Stevens, sought to elude these opinions by affirming the Colorado law’s constitutionality based on what the Court characterized as the “privacy interest in avoiding unwanted communication,” an interest it treated as an aspect of what Justice Louis Brandeis had long before called, in the very different context of government conduct, as the “right to be let alone.” As Justice Antonin Scalia’s dissenting opinion (joined by Justice Clarence Thomas) demonstrated, Colorado had made no such argument in support of sustaining the statute. Indeed, it had explicitly rejected any attribution to it of such a basis for sustaining the law as a “straw interest,” one not made by the state and one that it had repudiated. The strategic reason Colorado had done so was clear enough: only three years before, the Court declined to rely on that very contention as a basis for sustaining such a law and, in the course of doing so, had expressed “doubt” that this “right . . . accurately reflects our First Amendment jurisprudence.” Yet based primarily on that theory, a statute that criminalized the sort of speech the First Amendment most obviously generally protects—protests, education, and counseling on public property—was held constitutional. That was the ruling with respect to a statute that banned the speech regardless of whether it was at all threatening or whether the speaker had interfered in any way with access to the clinic. From any previously articulated First Amendment perspective, the ruling was insupportable, yet only three conservative members of the Court dissented.

Justice Kennedy’s summary statement of the case in his dissent put it this way: “For the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.” His conclusion was memorable:

Here the citizens who claim First Amendment protection seek it for speech which, if it is to be effective, must take place at the very time and place a grievous moral wrong, in their view, is about to occur. The Court tears away from the protesters the guarantees of the First Amendment when they most need it. So committed is the Court to its course that it denies these protesters, in the face of what they consider to be one of life’s gravest moral crises, even the opportunity to try to offer a fellow citizen a little pamphlet, a handheld paper seeking to reach a higher law.

In 2014, Hill was effectively reversed by a unanimous vote of the Court in McCullen v. Coakley, a case that held that a Massachusetts law, similar in almost all respects to the one that the Court had held constitutional fourteen years before, was overbroad and thus unconstitutional. Not a word was said in the opinion for the Court, written by Chief Justice Roberts, about the Court’s earlier reliance on any...