According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean?
A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.
It's a jarring claim. For decades, some influential readers, including Supreme Court Justice Hugo Black, have said that the First Amendment is an “absolute,” meaning that it forbids any restrictions on speech. Most others, including members of the current Supreme Court, insist that it doesn’t go quite that far. For example, government can regulate bribery, obscenity, perjury and false commercial advertisements – not to mention false cries of “fire!” in a crowded theater.
But almost everyone agrees that, with well-defined exceptions, freedom of speech is the general rule, and that it is the Supreme Court’s business is to protect it.
Campbell contends that the founding generation did not see things this way. In his account, theirs was an altogether different political world, and their concepts and principles were not at all like ours.
Campbell starts with the claim that much of the founders’ thinking was organized around the idea of “natural rights” -- rights that people could have without any government at all. Unlike the rights to a jury trial and to due process of law, the right to speak counted as a natural right.
But this didn’t mean that free speech was an absolute, or even that courts should protect it. Far more modestly, it meant that speech could be restricted only to protect the public good, and only when the people’s representatives voted in favor of the restriction.
For the most part, it was up to the legislature to decide whether speech needed to be regulated to protect the public good – understood, in James Madison’s terms, as the “safety and happiness of society.” As one writer explained, “Political liberty consists in a freedom of speech and action, so far as the laws of a community will permit, and no farther.”
Campbell offers two important qualifications. First, the founding generation opposed licensing of the press. In that way, they sought to forbid prior restraints on what members of the press could say (without necessarily forbidding subsequent punishment through criminal trials).
Second, they thought that (in Campbell’s words) “well-intentioned statements of one’s views were immune from regulation.” That means that so long as your speech was not meant to mislead or harm others, you were protected.