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Constitutional Originalism and Freedom of Speech

By       (Page 1 of 3 pages)   No comments, In Series: Constitutional Originalism
Message Larry Butler

What WERE the Framers thinking as they codified Freedom of Speech?
What WERE the Framers thinking as they codified Freedom of Speech?
(Image by John Trumbull, 1818 (derivative))
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So far we've examined the concept of constitutional originalism [1], and how it's been hijacked by the radical right. Then we explored the Electoral College [2] in disturbing detail, and saw how it has been used to marginalize minorities and disenfranchise the majority. Now let's take a look at free speech and see how it has been applied to collective organizations like corporations and labor unions.


The Second Amendment is said to guarantee our freedom of speech as it states, "Congress shall make no law" abridging the freedom of speech".." What were they thinking?

Look at the context - "Congress..." refers strictly to the federal government, and does not apply guarantees or restrictions to the authority of the States or their people. ""shall make no law" is specific to legislation that might be viewed by the States as federal government over-reach. The words themselves convey no guarantee of free speech whatsoever, but merely restrict Congress from abridging our freedom.

However, from the beginning the First Amendment was viewed as applying not only to Congress, but also to all parts of the federal government. Then in 1868, the Fourteenth Amendment [3] formally expanded the protections in the U.S. Constitution so that the States are bound in the same way. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."


Clearly, in 1789 free speech was an ideal - it had been incorporated into law with respect to speech in the English Parliament, and recently codified in the French Revolution. Since the beginning of the American republic, the First Amendment has been treated as though it explicitly guaranteed freedom of speech even though it did not. And it took a while to determine in principle, case law, and practice just exactly who was protected and what was protected - and application of law continues to evolve today.

How did freedom of speech evolve? It went from prohibiting Congress from making laws abridging it to requiring state and local governments - and even private entities - to themselves guarantee it. As noted, the Fourteenth Amendment constrained States to extend constitutional protections to its citizens. But it was primarily intended to protect freedmen of African descent from the States in which they resided as citizens, and years passed before the legal connection was completed. Freedom of speech was explicitly guaranteed in 1925 when the Supreme Court ruled in Gitlow v. New York [4] that the authority of the First Amendment - however interpreted - was extended over the States.

Never in our history have Americans universally enjoyed absolute freedom of speech. From the beginning, slaves and women were limited in their right to speak on their own behalf - if not by the laws of their states, then by their slaveholders or their husbands. So the freedom of speech - much like any other right and freedom in the founding documents - depends as much upon who you are as it does on what you say.

What if you are an organization like a corporation or a labor union instead of an individual citizen? The Constitution doesn't mention corporations, and the Founders had just rebelled against the English Royal Charters that had dominated trade since the Seventeenth Century. The Founders certainly would not have intended for such organizations to enjoy the rights of individual citizens. But political power came with the growing economic power of railroads and industry - especially during and after the Civil War. In 1886, the Supreme Court, in Santa Clara County v. Southern Pacific Railroad[5] ruled that equal protection conferred by the Fourteenth Amendment was extended to corporations as well as natural persons. This ruling was a necessary precedent that ultimately led to later decisions - including Citizens United v. FEC [6].

There is no evidence that the Founders included anything but the use of language - the written or spoken word - to fall under the rights and protections afforded by their documents. But as the application of law and principle evolved over the next two centuries, the definition of speech expanded. First, gestures and actions - whether or not accompanied by words - were recognized as symbolic speech in Stromberg v. California (1931)[7]. This principle was tested severely during the Vietnam War, as protestors burned flags and draft cards, and adopted attire associated with protest movements. Even art in its various forms - graphic, music, physical - is protected today.

Remarkably, the scope of speech was expanded to include the symbolic statement of spending money on political contests. When combined with the extension of rights to corporations under the Fourteenth Amendment, we get the bizarre result that corporations can spend money to buy political candidates by financing their election. Citizens United marked an expansion of freedom of speech that the Founders clearly did not intend and of which they would not approve.

Like expansions of protections, restrictions have also evolved. As early as 1798, the Sedition Act [8], restricted political speech against the government in order to suppress Democratic-Republican opposition to war with France. Ironically, within two years the Jefferson Administration refused to enforce the very act that was directed against them. The Sedition Act of 1918 [9] restricted speech in support of enemies and criticism of the government, Constitution, or symbols of the United States. It was repealed in 1921.

Political speech remains protected to this day. But in the past 240 years, many real and practical restrictions have been imposed on other forms of speech. You will be in violation of the law if you use your freedom to incite a riot, violate a copyright, pick a fight, create or propagate obscenity or child pornography, or harm another person with lies. You may also face a higher standard beyond these restrictions if you occupy a position of public trust. But you're okay if you're a corporation who wants to buy an election!


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Thirty five years as a small business consultant, CFO, and university educator specializing in quantitative business and economic modeling - a suite of experience now focused on economic inequality. Carefully attributed data, thoughtful (more...)

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