Introductory comments about the First Amendment: Free Speech Clause

We have no doubt that most of us living in this country think having free speech is comparative to natural or human rights; meaning, that the ability to speak freely within the United States is a given. In fact we live in the most outspoken society on earth. Americans are freer to think what we will and say what we think than any other people, and freer today than in the past. Notwithstanding anything a person would be right in that assessment – however, it was not always the case.

We can bare the secrets of our government and on the other end of the extreme speak of our exploits in the bedroom. We can denounce our leaders, each other, or anything without the worry of consequences. There is almost no chance that a court will stop us from publishing what we wish in print, on the air, or on the Internet.

And then we have those “hatemonger’s” that will go around espousing as much hateful and shocking expression, either political, artistic, and as such those very demented people are almost free to enter the marketplace of ideas.

Almost every other nation that we’ve been to, we try and think that givematters of speech that other nations are just like ours; however, the exact opposite is true. The United Kingdom, Canada, and Australia have many more rules which to follow regarding restrictions on what can be said pursuant to the political schemata, leaders, and laws. It all comes down to the decision and fourteen words express: “Congress shall make no law … abridging the freedom of speech, or of the press.”              

Interestingly these fourteen words cannot in themselves account for our great freedom, because over many decades they did not protect critical expression. In 1798, only seven years after the First Amendment was added to the Constitution, Congress passed a law that punished disrespectful comment on the president. Editors and other stately gentlemen were imprisoned for mocking President John Adams. A century later, under another congressional statute, men were sentenced for 20 years in prison for criticizing a policy decision by President Woodrow Wilson.

Today on the other hand every president is the target of criticism and ugly mockery. It is inconceivable that even the exaggerated and most toxic critic would be imprisoned for their words. If such a prosecution were attempted the courts would throw it out as in definite conflict with the First Amendment. So something has happened to those fourteen words of speech and press clauses. Somehow their meaning has changed: judges’ and the general public have been conditioned to accept that there are perhaps different understandings in the meaning of those words.

To say that is a way to open the ways of appreciating a mysterious and remarkable process: the changing interpretation of our fundamental law. “We are under a Constitution,” according to what Chief Justice Charles Hughes stated, “but the Constitution is what the judges say it is.” One today could easily state that that kind of attitude is “legislating from the bench.” However there is a grain of salt with that position – insofar as someone has to interpret the words of our eighteenth-century Constitution and its amendments: which under our current law is the job of the courts at all levels, and that is the way we’ve made it.

Please – all of us remember that judges are directly influenced by the attitudes of their society – and please remember that there are forever political consequences once one attends to the bench. So history, law, and culture contribute to the process of defining what the Constitution commands.

This is the exact reason why we espouse the nature of our society including its norms, values, ethics, traditions, and historicity so that other people who move here who are elected to office may have a different say, Hidden Agenda.