WHERE DOES FREE SPEECH COME FROM?

It is well known that American citizens have an almost absolute right to freedom of speech. Like all well-known facts, this is wrong. The federal constitution, properly understood, does not guarantee individual free speech and the route taken by the Supreme Court to make up this lack is problematic. But, before I start, I must face one problem head on. Americans have an almost religious devotion to both the near-perfection of the Constitution and the importance of free speech. To question whether the one protects the other invites the same response as spitting on the Torah in Temple, or stamping on the Cross in Church. Understanding this, I will nonetheless forge ahead, but let's try to separate out the questions of whether free speech is a good thing (it is) and whether it should be protected (it should) from the question of whether it is protected by the Constitution as written.

There are five possible sources in the Constitution for freedom of speech. The best known, the almost universally accepted, source, is the First Amendment, which says in pertinent part: "Congress shall make no law . . . abridging the freedom of speech."

Two other possible sources are the Ninth (The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.) or Tenth (The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.) Amendments.

The two final possible sources both come from the Fourteenth Amendment, the Privileges And Immunities clause and the Due Process clause: 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.

To quote the First Amendment is to explain why it cannot be said to protect free speech. It does not guarantee the individual citizen any right at all. It does not say, as it might, that "Robust debate being necessary to the security of a free state, the right of the people to free speech shall not be infringed." It is, instead, much narrower. It does not say that freedom of speech cannot be infringed, only that Congress cannot do the infringing. Far from protecting free speech, by negative implication the First Amendment suggests that it can be abridged.

This is made even clearer by looking at the source for the First Amendment. Article 12 of the 1776 Virginia Declaration Of Rights says:

That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments. That any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.

Notice that, even here, the right was not to free speech as we understand it, but only against prior restraint. After publication, the speaker was subject to punishment for what was said.

What about the Ninth and Tenth Amendments? The Tenth Amendment need not detain us long. If anything, it underscores the states' power to regulate speech. The Ninth, too, is of little help. Free speech cannot be a right "retained" by the people because, at least in its modern form, it wasn't a recognized right at all. English common law, which is the source of most if not all of the rights protected by the Constitution, is of no help. The English, as late as the 1690s, were drawing, quartering and hanging printers found guilty of seditious libel against the King. English common law was so far removed from what we recognize as the freedom of speech that, not only was truth not a defense to charges of seditious libel, but it was thought that truth made the matter worse. A false charge could be countered, but a truthful criticism was particularly destructive of social order. This was the law in England and in the Colonies until 1735 when, in an act of jury nullification, John Peter Zengler was found not guilty in New York of libel because what he said was true. This became the general rule in the Colonies, but not in England. (Also, the jury probably ruled as much from dislike of the crown-appointed governor as from love of freedom of speech.)

Before moving on the Fourteenth Amendment, which is where all the fun is, let's stop for a prudential point. As I noted above, Americans badly want the Constitution to protect free speech. There is, therefore, great pressure to find this right in the Constitution and, if it cannot be found in the plain language (as it cannot), then to accept whatever slight-of-hand must be done to make it appear. This is a mistake.

The federal government is a government of limited and enumerated powers. It is governed by a written Constitution, adopted by the people of the United States. It can only do those things that it is specifically allowed to do in the Constitution. That Constitution can only be changed by the people, in the manner set forth therein, and otherwise should be interpreted as written. In fact, because sovereignty is vested in the people, the Constitution as enacted is the Constitution as understood by the people corporately at the time of adoption. The only reliable guide to the intent of the adopters is the plain meaning of the language used.

Given all of this, it is important that the judiciary, the least democratic of branches, be tied as tightly as possible to the language of both statutes and, infinitely more importantly, of the Constitution. To the extent that judges, conservative or liberal, are given free rein to find even the most laudable of rights in the Constitution, the sovereignty of the people will be eroded. Each new right found decreases the very legitimacy of our government, no matter how much we might applaud the protection of that right in other circumstances.

This brings us to the Fourteenth Amendment. The Supreme Court has held, since 1931, that the Due Process clause protects freedom of speech from the states as part of the liberty that cannot be abridged without due process of law. Stromberg v. California, 283 U.S. 359, 368 (1931) (“It has been determined that the conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech.”), citing Gitlow v. New York, 268 U.S. 652, 666 (1925) (“For present purposes we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States,” but rejecting the objection); id., at 672 (Holmes, J., joined by Brandeis, J., dissenting) (“The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.”)

Many people are unhappy with anchoring the right to free speech on the liberty guarantee of the Due Process clause. The reasons for this unhappiness are pretty simple. First, as foreshadowed above, this guarantee of liberty is not detailed, but can only be given specificity by judges acting on an ad hoc basis. Second, the Due Process clause does not protect liberty absolutely, but only requires "due process" of law for its abridgement. Why isn't the deliberate action of the government of a state "due process" of law? To the extent that the individual citizen has any right to object to a law of general application, what process is he due? You can't say, simply, that laws touching on liberty require more process, because all laws touch on liberty. Every law tells the citizen "This you may not do", whether it be libeling the governor, or donating money to his campaign, or simply speeding down the highway at 80 mph.

In any event, what we really want to say about speech is that here is a liberty that is so fundamental that it cannot be abridged, regardless of the process used, unless the need is compelling. Once again, the logical implication of the language is at odds with what we want to accomplish. Why would the framers of the Fourteenth Amendment say that our liberty cannot be abridged without due process, if what they meant was that free speech is a liberty that cannot be abridged regardless of the process. Moreover, this "liberty" argument assumes its conclusion. It assumes that free speech is a fundamental American liberty, even though it is not protected absent an interpretation of the Fourteenth Amendment that protects it. This same sort of bootstrapping is also fatal to the attempt to use the Privileges And Immunities clause to secure freedom of speech.

Before moving on to the Privileges And Immunities clause, though, I would like to praise (albeit with faint damnation) the doctrine of Incorporation. Incorporation is what I've discussed above; the idea that the Due Process clause incorporates parts of the Bill of Rights so that they limit the states as well as the federal government. First, I do realize that protecting free speech and the other fundamental rights in the Bill of Rights is, all other things equal, a good thing. This Incorporation does, although dishonestly. Second, Incorporation was expressly designed, mostly by Justice Black, to address the problem, noted above, of unfettered judicial sovereignty based on vague Constitutional provisions. Justice Black's insight was that the Due Process clause, which might otherwise become an avenue for enforcing judicial notions of liberty, could be limited by Incorporation to the Bill of Rights. In other words, Justice Black hoped to read the limitations of the Bill of Rights into the Fourteenth Amendment in order to give the Courts actual language to guide and limit their discretion, rather than simply let them philosophize about the nature of liberty. This has not worked perfectly, but it has worked. Finally, Incorporation does answer one otherwise perplexing problem: it's obvious that the Fourteenth Amendment means something important, but, absent Incorporation, it's not clear what. (On the other hand, the great harm stemming from Incorporation has been the erasure of any distinction between the First Amendment bar on federal regulation of speech and the Fourteenth Amendment limitation on state regulation. The end result, ironically, has been to allow federal regulation of speech, which is intrusive and growing.)

Nonetheless, many people are unhappy with locating the right to free speech in the Due Process clause but, because they want it to be in the Constitution somewhere, they argue that it is one of the privileges and immunities of citizens of the United States, and thus it cannot be abridged by the states. This is a bootstrapping argument that cannot possibly be right.

The privileges and immunities of the people of the United States can only be those that appear on the face of the Constitution (or, arguably, those that are identified as such by Congress, but that's another can of worms). So, for the privileges or immunities clause to protect free speech, that freedom must appear clearly in the text of the Constitution. The problem is that, not only does it not appear in the text, it is implicitly disavowed. "Congress shall make no law . . . abridging the freedom of speech" is not a guarantee of freedom of speech. It is a statement that the responsibility for regulating speech is not vested in Congress. In other words, it is for the states to regulate. Again, look at this from the point of view of the individual citizen. Congress cannot regulate his speech, but his speech is still subject to regulation.

In short, the individual citizen of the United States, in 1790 or 1865 or 1922, had no assurance of free speech from the federal constitution. If found guilty under the laws of his state, he was punished accordingly, without any appeal to federal law. How then can free speech be a privilege or immunity due a citizen of the United States as a citizen of the United States? It cannot. This is the position taken by the Supreme Court in The Slaughterhouse Cases, 16 Wall. 36 (1873); and reiterated as late as 1922, just nine years before the Court held that free speech was protected by the due process clause. Prudential Insurance Co. v. Cheek, 259 U.S. 530, 543 (1922) ("neither the 14th Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about 'freedom of speech' . . ."). In other words, a citizen has the right that his speech not be regulated by Congress, but to "apply" that right against the states is meaningless. This is pure bootstrapping: freedom of speech is protected by the Fourteenth Amendment because it's protected by the First Amendment because it's protected by the Fourteenth Amendment. It is driven entirely by a desire that free speech be protected by the Constitution.

I'd like to end where I began: as Americans, we want our Constitution to protect free speech. We've found a way to accomplish that, though it is anti-democratic. Should we even care that it is not democratic, as it is clearly popular? I think we should care, for three reasons. First, we should care because it is not honest. Any discussion of free speech is full of praise of the First Amendment, even though it clearly does not protect the individual right to free speech. We do not dare be honest about this, and that is a clear give away that something is wrong. Second, far from acting ashamed of the lack of a Constitutional guarantee, we should be proud that free speech was so well protected and became so venerated, even though it wasn't a recognized federal right until, even arguably, 1925. Free speech is a fundamental American value because Americans want it to be. Third, as a democracy, it is important that we be intellectually honest about our history and our self-governance. Many people believe that our great achievement is the Constitutional protections afforded minorities, but this comes, in part, from a misunderstanding of the Constitution. There is nothing that is forbidden to an enduring and pervasive majority. This makes some people nervous and, I think, they wish to hide from the people what their true power is. For me, I think that we cannot be expected to handle our power wisely unless we first face up to it, and then take responsibility for it. Posted by David Cohen at June 19, 2003 10:46 PM