Free Speech Clause: Origins and purposes
By David Adler
The guarantee of freedom of speech, central to Americans’ participation in self-governance and the life of the nation, is secured by the First Amendment of the Constitution. Ratified in 1791, the Free Speech Clause provides: “Congress shall make no law abridging the freedom of speech.”
The right to freedom of speech is derived from English law and tradition. At the time of the drafting of the Bill of Rights by the First Congress in 1789, and its ratification by the states two years later, it was understood by the framers that free speech, like every other provision in the Bill of Rights, is subject to some degree of regulation. That is, while there is no “absolute right” of freedom of expression, the extent of permissible governmental regulation of speech has been debated ever since.
Among the founders, there was broad agreement that the Free Speech Clause prohibited prior restraint, that is, advance censorship of publication, thought, expression or inquiry.
However, the English law of “seditious libel,” which permitted punishment, after the fact, for speech that harshly criticized government — officials and policies — in a way that caused it to be held in contempt by the public, was in effect in America, although rarely enforced. Speakers knew that while they had the freedom to say what they wished, they could be subject to criminal prosecution for the consequences of their speech.
The possibility of punishment for expression of one’s opinions outraged most Americans. The founding generation, perhaps history’s greatest dissenters, had hurled caustic criticisms at King George III and Parliament in the run-up to the American Revolution, and they retained their passion for hard-boiled, corrosive, offensive speech in the early republic. Despite the fact that seditious libel statutes threatened speech, Americans, as a practice, adopted a broad conception of freedom of speech.
The English law’s definition of protected speech had become unsuitable, and lagged behind the citizenry’s belief that they enjoyed the right to engage in candid, robust criticisms of governmental actions, policies and programs. Government, after all, was derived from, and accountable to, the American people.
The disconnect between the popular conception of freedom of speech and the lingering seditious libel statutes still on the books, exploded in 1798 when the Federalists, who had controlled American politics since the adoption of the Constitution, passed the dreaded Alien and Sedition acts. Violation of the repressive statute, particularly by newspaper editors loyal to Thomas Jefferson, led to conviction and imprisonment.
Rep. Matthew Lyon of Vermont disparaged President Adams’ performance in office and was sent to prison for violation of the Sedition Act. His sentence, however, did not prevent his loyal constituents from electing him to another term, while behind bars.
The question of the constitutionality of the Sedition Act never reached the courts. In the aftermath of the election of 1800, justly characterized as “the revolution of 1800,” when Americans rejected the Federalists and replaced them with Jeffersonians, the newly-elected Congress repealed the statute. President Jefferson pardoned those who had been convicted of seditious libel. In 1964, Justice William Brennan, in the landmark case of New York Times v. Sullivan, acknowledged that while the Sedition Act had never been held unconstitutional, it certainly was so viewed by the court of history.
Americans’ response to the Sedition Act of 1798, including the sharp rebuke from Congress and the president, demonstrated the nation’s strong embrace of freedom of speech. The repressive statute also demonstrated the capacity of governmental officials to lose their minds in the context of a crisis — real or imagined — and the tendency to impose draconian restrictions on freedom of expression in the name of national security.
While instances of repressive measures stain American history across the decades, as we shall see beginning next week, Supreme Court decisions defining the limits on the regulation of speech reflect a national commitment to broad citizen participation in addressing and debating the great issues confronting the nation — precisely what we should expect in a democracy.