I. Introduction

This course focuses on the First Amendment’s Speech Clause, which states in relevant part that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for redress of grievances.”

The historical evidence indicates that the First Amendment’s Framers primarily intended it as a bulwark against the new American federal government adopting the kinds of laws suppressing speech that existed in England at the time. To provide two examples: until 1694, English law established a detailed system of licensing requiring that any publication must undergo government review and approval and have a government license issued prior to being published. Similarly, the English law of “seditious libel” made it a crime for anyone to criticize the government.

Beyond these two clear goals—prohibiting Congress from enacting prior restraints on publications and from punishing seditious libel—the historical record is hardly conclusive regarding what else the Framers thought the First Amendment’s Speech Clause would protect. Granted, there is additional evidence from the period of the “Second Framing”—i.e., the Congressional debates regarding the post-Civil War Amendments adopted during the Reconstruction Era—regarding what the Reconstruction Framers thought about freedom of speech under the Thirteenth and Fourteenth Amendments. But even that additional evidence is mixed. Hence, because courts unavoidably must decide whether a given type or form of speech is protected by the First Amendment, they have largely depended upon common-law doctrinal evolution rather than conclusive historical guidance.

Although an absolutist interpretation of the First Amendment is certainly possible—i.e., “‘no law’ means ‘no law’; therefore, any law abridging ‘speech’ to any degree is unconstitutional” —the Supreme Court has never accepted the premise that the First Amendment forbids any and all government regulation of speech whatsoever. (Justice Black and, on occasion, Justice Douglas, took a nominally absolutist position regarding the First Amendment, but their views never commanded a majority of the Court and were riddled with exceptions in any event). Hence, in interpreting the First Amendment, the courts have largely been guided by precedent; and when no precedent is on point, by resort to first principles.

Hence, perhaps the first “first principle” to consider is this: What constitutional values does the protection of freedom of speech promote? What constitutional values should it promote? Knowing how courts understand and are guided by these constitutional values is important, both because it will help you understand the courts’ reasoning in the cases presented but also because it can help you shape First Amendment arguments in practice.