These qualifications would afford considerable protection to free speech -- but from the point of view of current law, not nearly enough. It would allow the government to enforce norms of civility – as with laws punishing blasphemy and profanity. It would allow punishment of falsehoods – as through expansive use of libel law to extract big damage awards from newspapers and broadcasters (as favored by President Donald Trump). It would also allow the government to punish efforts to deceive others (and deception is a pretty large category).
Campbell illustrates these points by noting that in the founding period, there was vigorous debate about the Sedition Act of 1798, under which people could be fined or imprisoned for writing, printing, uttering or publishing “any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States.”
From the standpoint of law in the 21st century, that’s plainly unconstitutional. But in the founding era, most people seemed to think that it was fine. One commentator insisted that “[t]he freedom of the press and opinions was never understood to give the right of publishing falsehoods and slanders, nor of exciting sedition, insurrection, and slaughter, with impunity.”
Campbell’s research raises serious questions for “originalists” – those who believe, with Justices Clarence Thomas and Neil Gorsuch, that the meaning of the Constitution is settled by the original understanding of its terms. Do we really want to go back to the 18th-century view of freedom of speech?
At the same time, engagement with the historical materials raises hard questions for free-speech enthusiasts. Campbell contends that on the original understanding, Citizens United (the Supreme Court’s decision protecting the right of corporations to spend money on political campaigns) “would likely have to go.” His analysis also suggests that the First Amendment was probably not meant to protect hate speech, flag-burning or efforts to promote terrorism.
On these issues, it makes sense to grapple with 18th-century understandings, and to do so with humility and respect. Campbell’s elaboration of those understandings shows that in expanding protection of freedom of speech, the United States has made a ton of progress – but that in some areas, we may have lost a sense of balance along the way.
Cass R. Sunstein is a Bloomberg View columnist. He is the author of “#Republic: Divided Democracy in the Age of Social Media” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”