First Amendment Musings

"Congress shall make no law ... abridging the freedom of speech, or of the press..."

Almost from the beginning of First Amendment jurisprudence it has been assumed that when the Framers used the words "no law," they didn't really mean "no law." Lots of things have no First Amendment protection, such as incitement to violence, obscenity, and libel (unless you're CBS - and I'm only partly joking, here). In fact, as Justice Brennan pointed out in Roth v. United States (1957), "[t]he guarantees of freedom of expression in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance... In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not meant to protect every utterance." This, in contrast to Hugo Black's dissent in Konigsberg v. State Bar (1961), in which he basically argued that the words "no law" mean "no law."

It's hard to argue with Black's approach, because the framers presumably knew what the words "no law" meant and stuck them in there on purpose. But it's also hard to argue with Brennan's observation, because if the states had anti-obscenity laws (for example) when they ratified the Amendment, and they continued to enforce those laws after ratification, it stands to logic that the people who ratified the Amendment didn't think they were violating it.

Being the textualist that I am, I think there's a perfectly simple way to read the First Amendment without running afoul of either Justice Black or Justice Brennan, and it all falls on the very first word - Congress.

When the Constitution uses the word "Congress," it means one and only one thing. It refers to the two federal legislative bodies, the U.S. House of Representatives and the U.S. Senate. The word "Congress," in that document, does not apply to any other group. So re-read the words: "Congress shall make no law ... abridging the freedom of speech, or of the press..." Consider the possibility that those who ratified this amendment meant it to do exactly what it says - prevent federal legislation that in any way, shape or form abridges the freedom of speech or of the press. Why? Because regulation of speech is more properly left to states, perhaps. Because there's nothing about federal power which makes it better equipped to deal with speech issues, perhaps. Because those who wrote the Constitution only wanted the Federal government to deal with Federal issues, and a man's right to wear a shirt that says "F--- the Draft" into a courthouse has nothing whatsoever to do with federalism, perhaps.

The next step in my analysis must turn to the Fourteenth Amendment, because that is the instrument, according to the Court, by which the Bill of Rights became applicable to the states. In relevant part, it reads, "[n]o 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."

Apparently the reasoning goes like this: as a citizen of the United States, I enjoy First Amendment privileges. States are forbidden from abridging those privileges. Therefore States (and State entities, such as the local police) cannot infringe upon my right to free speech.

The problem with this logic is that is pre-supposes that I have a privilege as a citizen against any and all free speech infringement. That is not necessarily the case, because as I just demonstrated the text of the First Amendment can reasonably be read as supporting my right against Federal meddling with speech laws. And in the Amendment, the phrase "of the United States" is code language meaning "federal." Therefore, if I have no federal right as a citizen, the States can continue to enforce speech laws without any fear whatsoever about infringing upon my federal rights. Simply stated, my only federal right in this context is to keep Congress from limiting my speech rights.

Any comments? Am I being too anti-federal-government? Just the right amount of anti-federal-government?