“Free speech” is too simple. To my mind, the idea of “free speech” is too close to the idea of flat earth. It’s too easy to say and too easy to think. It’s too easy to see—from an exceedingly inadequate vantage point. Too much of how too many perceive “free speech” reminds me of something Voltaire said about how we perceive “history” (it’s the “lie that everyone agrees on”).
The wise and witty SCOTUS Justice Brandeis (to dissent against the opinion of the majority of SCOTUS Justices) in Olmstead v. United States, 277 U.S. 438, 479 (1928), wrote words that are equally relevant here and now: “Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. . . . The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.” Far too many who, with even the best of intentions, speak to us about “free speech” (including judges) fail to really understand (or have forgotten) the true nature of Americans’ freedom of speech.
It’s now obvious to all that the flat-earth idea did not even begin to adequately prepare people to grasp the true properties, complexities and potential of our physical world. In much the same way, the free-speech idea fails to prepare people to grasp the true properties, complexities and potential of speech in America. Saying the First Amendment means “free speech” simultaneously says too much and too little. And at both extremes, it is very far from true. This piece touches on how “free speech” says far too little.
When we think of the significance of speech in America, we should not think of a word that begins with “f.” We should think of a word that begins with “s.” In America, as in many nations, speech is for sovereigns. But who is sovereign makes a world of difference. In the old world, a single sovereign ruled his people, and to remind the people of that, he stamped his likeness on the coins his people spent (if they were lucky enough to have any coins). In America, the people are sovereign, so we stamped our likeness on our own speech and on our own government.
It is too easy to overlook one of the most obvious and most important aspects of the Constitution, that is, what it is. It is a document. And that document (and our government) clearly did not create or give us our freedom of speech. Our Constitution and our federal government owe their very existence to our pre-existing freedom of speech. Our written Constitution and our Declaration of Independence are physical manifestations of the exercise of the freedom of speech and press that existed long before the original Constitution, and even longer before the First Amendment.
It also is too easy to overlook another of the most obvious and important aspects of the Constitution, that is, its primary purpose. Our written Constitution embodies the very cornerstone of the foundation of this nation: the concept that the people are sovereign—so we have no ruler whatsoever except the rule of law. By far, the two most important parts of the Constitution are the Preamble and the First Amendment. Both focus on—by far—the most essential element of our Constitution: the people.
The original Constitution began by powerfully emphasizing the sovereignty of citizens with its first words, which were by far its boldest (in placement, font and meaning): “We the People.” When we really see the Constitution, we can see that those words were not merely written in the Constitution. Those words introduce the Constitution with an imposing illustration. But that illustration is no mere artistic flourish. It consists of massive, somber black font that commands not merely attention, but obedience—by all public servants (federal and state) whose functions were addressed in the rest of our Constitution. Those words were illustrated massively so that no one (and especially no public servant) would forget that everything else in the Constitution was written by us for us to support what we wrote about ourselves, first, in the Preamble and, later, in the First Amendment.
We the People are sovereign, so our freedom to think, speak, write, publish and assemble and even to write to our own government (our right to petition) are analogous to those of the king of England. In Britain, the king has some of the powers of a sovereign, but he remains subject to the laws written by Parliament. In America, the conduct and speech of sovereign citizens is subject to any greater concerns in our Constitution, e.g., due process of law and national security.
The First Amendment was added to our Constitution merely to explicitly emphasize what already was implicit in the Preamble. As James Madison emphasized in his Report of 1800, the First Amendment merely “declared” the freedom of speech and “press” to explicitly emphasize that such freedom already implicitly was “exempt from [all federal] power.” Nothing in the Constitution gave the federal government any power to abridge our sovereign powers to think, speak, write, publish and assemble, so (merely as an added precaution) their abridgment was “expressly forbidden by a [merely] declaratory amendment to the constitution.” Id. Such “authority” was expressly “withheld by the constitution” (in the First Amendment) so that it would not fall victim to subsequent “vague and violent [so-called] construction[s]” by judges or legislators. Id.1
It also is too easy to overlook another of the most obvious and important aspects of the Constitution, that is, what it really says about speech—as a power and a duty. Article I speaks to Senators’ and Representatives’ powers and duties to speak as our representatives. It also speaks to how Congress and the states may not speak about certain subjects. The Fourteenth Amendment, Section 1, says even more about how states may not speak. And Section 3 is fairly famous these days because it speaks to who is disqualified from speaking for us because they previously abused their power to do so.
Article II speaks to the President’s and Vice President’s powers and duties to speak as our representatives. It also speaks to states’ and electors’ powers and duties to speak as our representatives in choosing the president and vice president. Article III speaks to judges’ powers and duties to speak as our representatives.
All the foregoing parts of the Constitution highlight the fact that speech is so much more than merely free. It is a duty. It is the lifeblood of “government of the people, by the people, for the people,” as President Lincoln emphasized in his Gettysburg Address. Additional parts of the Constitution emphasize that even people who are not employed in our government have not only the power, but also the duty, to speak for the people.
Article III speaks to the powers and duties of jurors (the people) to speak to restrain what judges say and do. The Fifth, Sixth and Seventh Amendments further establish how the people may and must directly restrict what prosecutors and judges say and do by exercising the freedom and power of speech as jurors (on a grand jury or trial jury) or as counsel or witnesses. The Sixth Amendment further commands that the people must be able to oversee how prosecutors and judges represent us in criminal trials, which must be public.
The First Amendment speaks to speech in all the foregoing forms. It further speaks to each person’s power to vote and to listen to and speak to political candidates. It also confirms that all people have the right and power to think and speak for ourselves and for each other, including in our capacities as public servants (employed in our government) and as jurors, lawyers, journalists, clerics, or as private citizens or private persons.
For a highly relevant illustration of why Article III and the First, Fifth, Sixth and Seventh Amendments were written the way they were (including to require criminal trials to be public, to preclude prosecutions without indictment by a grand jury (of our peers), to preclude conviction without the judgment of a jury (of our peers), to require the assistance of counsel, to require the ability to call witnesses) and especially to appreciate that those precautions are integral to protecting our freedom of speech, it is well worth reading about the trial of Peter Zenger in 1735.
Zenger was a German immigrant who operated a printing press. The poor fellow was put on trial because the government of New York thought it would be easier to prove he was guilty of criticizing the governor than to prove the guilt of Zenger’s lawyers (who wrote what Zenger printed). Zenger’s trial and its consequences are crucial to understanding our true freedom of speech and press, including the right and duty of all citizens to expose and oppose people in power who abuse their powers. What the governor and judge did, and what the judge and the law said, are relevant only because of the way Zenger’s lawyers and the jury (after careful, thoughtful consideration) disregarded and overrode them all.
What is truly relevant (to our freedom of speech and press) is what Zenger’s lawyers, the jury, the press in New York City and then the press and the people throughout the colonies said and did. They essentially compelled people in power in every colony to adopt or at least acquiesce in the position of Zenger’s lawyers and jury. That was a particularly powerful and profoundly important exercise and famous defense of our freedom of speech and press. What they did was written into our Constitution.
Our entire Constitution speaks to the freedom, duties and limits of speech. Some such speech is by citizens employed as our official representatives in government. Some such speech is by citizens who are not employed in government but still act as our official representatives, including as jurors or presidential electors. Some such speech is by people employed as our unofficial representatives, including lawyers, journalists, clerics or other representatives. Some such speech is by us speaking for ourselves, including by voting and by speaking and writing about public issues and public people. Such speech is so much more than merely free. It is essential to our society.
Some of the most outstanding writing about the First Amendment (and about important aspects of the Constitution) was written by James Madison, the Founder and Framer whose thinking and writing were so crucial that Madison became known as the Father of the Constitution. He also was the primary congressional author of the first ten Amendments known as the Bill of Rights. In 1798, out of fear that America was being dragged toward a major war, people in power (including the President, the majority of Congress and multiple SCOTUS Justices and the Secretary of State) created and purported to enforce the Sedition Act of 1798. To defend our freedom of speech and press (and the First Amendment and the Constitution) against those people in power (some of whom were viciously abusing their powers), Madison wrote the Virginia Resolutions of 1798 for the Virginia legislature. Then, to defend the Virginia Resolutions (and further defend our Constitution and our First Amendment rights and freedoms), Madison wrote the Report of 1800 for the Virginia legislature, a powerful piece, an insignificant part of which was quoted here.