As leading First Amendment scholar (and former dean of Richmond Law) Rodney Smolla puts it, “One can keep going round and round on the original meaning of the First Amendment, but no clear, consistent vision of what the framers meant by freedom of speech will ever emerge.” A quick look at the history reinforces Smolla’s point. For jurists of all stripes, interpreting the First Amendment is a historical dead zone.īut why? The most straightforward reason, it seems, is that nobody knows what the First Amendment originally meant. With only peripheral exceptions, however, modern judicial decisions about expressive freedom do not consider original meaning at all. The Supreme Court has the power only to interpret the Constitution, not the power to change it, so arguments about original meaning have always had special force. Nowadays, we typically associate this approach with political conservatism, and particularly the claims of many self-proclaimed “originalists” who aim to interpret the Constitution according to its “original meaning.” But the truth is that virtually everyone puts enormous weight on history. When faced with opaque features of our Constitution, judges and legal scholars often look for what those provisions meant when they were enacted. In any event, the First Amendment says only that Congress cannot abridge “the freedom of” speech or the press it doesn’t say that Congress cannot restrict speech or the press at all. Laws against committing perjury, disclosing classified information, and making terrorist threats, for instance, all restrict “speech,” but no one seriously doubts their constitutionality.

Every well-functioning government needs to restrict at least some speech. But this reading can’t be right, and it never has been. And the reasons why highlight fundamental shifts in American constitutional thought.Īt first glance, the text of the speech and press clauses might appear to prevent Congress from imposing any restrictions on expression. But what exactly does it mean? How far do the speech and press clauses restrict governmental power? The founders, as we will see, answered these questions very differently than we typically do today. The First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press.” For Americans, this language is familiar.

Freedom of assembly amendment