A not so simple declarative sentence

Author: 
Andrew C. McCarthy

If I can wade for a second into the discussion Jonah and Mike are having about Snyder v. Phelps, Mike's allusion to the simple declarative sentence that "Congress shall make no law ... abridging the freedom of speech" reminded me that it's never been quite so simple, and it has always had several well worn exceptions.

Having convicted people of soliciting acts of violence, urged that terrorist incitement ought to be vigorously prosecuted, called for action against people (including journalists) who leak classified information, and poked fun at the Supreme Court's absurd fear (in Ashcroft v. Free Speech Coalition (2002)) that prohibiting kiddie porn might mean Romeo and Juliet couldn't be presented anymore, I've spent more time than I'd like to remember on the complexities of free expression. But grappling with where the lines are also makes it easier to appreciate how noxious are things like the foreign persecutions of Geert Wilders, Mark Steyn, Oriana Fallaci and others who have been put on trial for speaking forcefully and in good faith about vital public issues only to be deprived of truth as a defense; similarly execrable are the "libel tourism" effort to extort journalists into silence about Saudi ties to terrorism, the Organization of the Islamic Conference's attempts to ban critical examination of Islam, and the Obama administration's co-sponsoring (with Egypt) of a UN resolution to criminalize speech that could provoke hostility against religion 

In any event, we went around on these questions a few months back when the Wikileaks story broke. With some guidance from Ed Whelan and Judge Bork, I posted the following, and I think it's relevant:

 I’ve always taken the language of the First Amendment’s free speech clause — “Congress shall make no law … abridging the freedom of speech, or of the press” — to be more sweeping than the freedom it was understood to convey. That’s why I said, probably too off-handedly [in an earlier post], that “the First Amendment has never been understood to mean what it says.” I don’t agree with [University of Chicago] Prof. [Geoffrey] Stone’s argument that it was an aspirational provision meant to evolve with the times. But I also don’t think limitations on speech that were well known in the late 18th Century (e.g., obscenity, profanity, libel, ”fighting words”) were well conveyed by the free speech clause.

As usual, Ed Whelan to the rescue. Ed points out to me that the clause does not forbid Congress from abridging freedom of speech generally — as if there were no conceivable restrictions. The framers took pains to insert the definite article the — barring Congress from “abridging the freedom of speech.” It seems like a small difference, but it is not. As Ed puts it, “the freedom of speech” was an “understood set of rights” at the time of the First Amendment’s adoption. In other words, the text of the First Amendment does not prohibit all restrictions on speech. It merely prohibits abridgment of “the freedom of speech.”  The question with respect to any speech restriction, therefore, is whether what it restricts is part of “the freedom of speech.” 

Ed’s point is consistent with Judge Bork’s argument in Slouching Towards Gomorrah. Excerpting from the Supreme Court’s 1942 decision in Chaplinsky v. New Hampshire, Judge Bork points out that

[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

As always, I am indebted to Ed and to Judge Bork, not only for the lesson in originalism but for the happy reminder that, as late as 1942, the Supreme Court assumed the existence of both truth and a social interest in order and morality!