Amar's Bill of Rights: Our First Amendment - Expression

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We see the First Amendment of the Constitution as the bedrock of our rights, protecting our freedom of speech and religion. As we have analyzed already, the primary role that the Bill of Rights plays in constitutional jurisprudence today is the protection of minority rights against repressive majorities. But the Founding generation was not looking for the protection of minorities. They had just suffered at the hands of British imperialism and militarism, and they sought protection against repressive central government.

The structure of the First Amendment sounds in majoritarianism, localism and federalism. One need look no further than the language of the amendment to see evidence of this truth: "Congress shall make no law..." Amar elaborates:

The body that is restrained is no a hostile majority of people, but rather Congress; and the earlier two amendments remind us that congressional may in fact have "aristocratical" and self-interested views in opposition to views held by a majority of the people. (p. 21)

Because of Congress' distance from local constituencies and the large number of constituencies represented by each congressman, the general concern was that Congress would "be less likely to reflect majority will." The courts were not expected to be the main arbiters of First Amendment rights either. Rather elections and states were expected to fill that role, as evidenced in the successful rallying against the Alien and Sedition Acts and the elections of 1800 which turned control of Congress over to Jefferson’s Republican Party. 

Local juries also played a part in enforcing the freedoms of expression guaranteed by the First Amendment:

The common-law rule against “prior restraint” – courts could not enjoin a publisher from printing offensive material but could entertain civil and criminal prosecutions for libel and sedition afterward – had bite largely because of the structural differences between the two proceedings. The former could occur in equity courts, presided over by permanent government officials on the government payroll (chancellors), but the latter required the intervention of ordinary citizens (jurors) free to vote for the publisher without fear of reprisal. (p. 23)

Many publishers invoked the First Amendment at their jury trials for libel and sedition prosecutions under the Alien and Sedition Acts. The Federalists insisted that the right to free speech was not absolute, but in the English tradition, free speech rights grew up out of Parliament. In Article 1, Section 6 of the original Constitution, congressmen were shielded from various reprisals “for any Speech or Debate in either House.” Absolute freedom to speak one’s mind in the constitutionally-recognized legislature was a foundational principle in a society of parliamentary sovereignty. So in a society where the People were sovereign (America), why should the People as citizens not have absolute freedom to speak? No court ever declared the Alien and Sedition Acts unconstitutional, but several juries refused to find publishers guilty under the Acts because of the First Amendment. After the Federalists lost control of Congress in the elections of 1800, the Acts were allowed to expire, free-speech rights defended through the work, jealousies and vigilance of the People, rather than by the hand of government. 

The Civil War and Fourteenth Amendment shifted this bias toward the insulated federal judiciary as it is unpopular, minority speech that is prosecuted in the courts. Rather than trusting popular opinion and the sentiment of that body of local citizens, defendants seek the protection of speech from judges who are free from popular political pressures. We will look at the Fourteenth Amendment in more detail when we examine what Amar has to say about its provisions, but for now it is enough to say that the First Amendment’s protections of free speech and expression are incorporated against the States through the Fourteenth Amendment’s Due Process clause  (though incorporation really should be accomplished through the Privileges and Immunities clause, but again, we will discuss this in the appropriate place). 

This progression should not surprise us, but the focus on individual and minority rights bleach out the rich tapestry of the popular-sovereignty logic and the roles of elections, states and local juries in protecting and building up the freedoms we all enjoy under our First Amendment.

imported from Wordpress. Original post date 5/21/2010