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.
Welcome to the first of a new monthly series here on Lawyers & Liquor, which we’re calling “Free Speech Friday.” I’m your host, the Boozy Barrister. Over the next however long it takes us, we’re gonna take one Friday a month to discuss legal issues of free speech and constitutional law here, both areas that I, as a shitty shit lawyer in Shitadelphia, Shitsylvania am not overly familiar with. So, this will be a learning experience for both of us, as Boozy pursues edification and then, like the loving momma bird that I am, promptly turns to vomit up the knowledge into your eagerly cheeping mouths.
Yes, I know, that’s probably someone’s fetish. Put it back in your pants, Pete. We got law to talk about.
More specifically, we have one specific law to talk about, being the First Amendment to the Constitution of the United States. You can see the whole fucking text of the thing above, one sentence that lasts 45 words and has caused more goddamn trouble to the courts than anything else. One sentence that has been used to guarantee the rights of everyone from activists marching for racial equality to assholes picketing funerals. 45 words that have been interpreted to allow folks to spout 14 words in city center when they seek to do so. Often contentious, and always loud, the First Amendment is, as author and Huffington Post journalist Naomi Wolf said, “designed to allow for disruption of business as usual. It is not a quiet and subdued amendment or right.”
In other words, it is the right to be fucking loud and, in general, do so without fear of restriction from the government. But how, exactly, did we come about gaining that right, written into the very foundational documents of our nation’s history? And why?
That’s what we’re talking about today on Free Speech Friday: the birth of the First Amendment and the why of why we have it. So sit back, grab some popcorn, and let’s get going with an impromptu legal history lesson.
The First Amendment Was Part of A Compromise.
Okay, so you know all those stories about couples that are in a relatively bad marriage, and in order to try and level things out to save the marriage they end up having a kid? Yeah, that’s the First Amendment, except instead of one kid the horrible marriage produced ten kids that were then appended to the Constitution and called the Bill of Rights. This was done so that mommy and daddy would all agree that they needed to stay together for the kids, really, and raise them into strong, smart individuals.
In 1787 the Constitutional Convention in Philadelphia proposed a new Constitution for the United States of America, which had been led after the Revolutionary War by a weak central government under largely ineffective Articles of confederation. Against this background, a proposal hit the floor much like the apocryphal bodies in that one song we all listened to back in high school when we wanted to feel like metal little fucks. Essentially, George Mason, a delegate from Virginia, suggested that it could possibly be a good idea for the document that was going to form the country to include a “Bill of Rights” that would guarantee basic civil liberties to the populace that lived under the government, given that the proposed Constitution sought to create a very strong (compared to the Articles of Confederation) legislative body and chief executive in the office of the President. In other words, it was proposed as a “Hey, dudes, uh, we’re creating something pretty big here, maybe we should codify some rights into the creating document to put some reins on that shit.”
Anyhow, there were some pretty fucking loud dissenting voices in the Constitutional Congress about this whole “guarantee basic civil liberties in the Constitution” thing. It wasn’t necessarily because the other members of the Constitutional Convention had a desire to oppress the populace, but rather that they were still stuck in the time they were a product of. See, unlike other wars, the Revolutionary War was one that was based in the concept of self-determination and control within ones own territory of their own laws. States’ rights and all that jazz. And the protest to the Bill of Rights was that guaranteeing basic civil liberties in a document that would control the behavior of all of the states impermissibly vested too much power in the centralized government when instead that power should be vested in the states as the parties with the responsibility to and obligation to protect their citizens within their own boundaries. Further, there was a concern that in creating a standard list of delineated rights, the argument would then become that other rights, which were unlisted, would be interpreted as not being protected.
Except, and here’s the rub, while that was a justification given for rejecting the Bill of Rights, including the First Amendment, it wasn’t the truth. See, the group that was espousing the “oh, we don’t want to strip power away from the states” was the Federalist faction of the Constitutional Convention, a faction that was in favor of creating a strong national government through the Constitution. Meanwhile, the party that supported the Bill of Rights, and accordingly the removal of basic civil liberties from the purview of the states, was the Anti-Federalists, the group that wanted to limit the power of the proposed federal government.
Doesn’t make sense? Well, bear with me, because here’s the first constitutional law fact that I’m dropping on you:
The Bill of Rights is a Proscriptive, Not Prescriptive, Document.
If you go through the first ten amendments to the Constitution, not once will you see anything that grants the government any power whatsoever to do absolutely fucking anything. Indeed, what you see in those first ten amendments are restrictions on the power of the federal government, restrictions that either 1) directly bar the government from doing something (“shall not make; shall not be violated; no soldier shall be, etc.”) or, in the alternative, something that 2) directs the government that it must fucking do something (must provide a speedy trial). Nowhere in that document does the government gain any power whatsoever because the best way the founding fathers could guarantee, in their eyes, the basic civil liberties common to everyone was to smack the government over the head and say “No!” like a bad puppy, setting out some firm rules.
The Federalists, of course, did not like the idea that these restrictions would be codified into the Constitution, as they wanted the federal government to have unlimited power that could be checked only by the states. Which, to be fair, considering that this was a time period when the ability of a state to leave the government was a thing that was sort of assumed would be available, is kind of reasonable I guess? I mean, I don’t think they were actively trying to create MechaPresident ready to trample over the rights of the states, and they were just then coming off of the absolute failure of the weak “hey you guys, really, pay your taxes” government formed under the Articles of Confederation.
Like it or not, though, the Federalists had to concede the Bill of Rights to the Anti-Federalists to get the 9 votes to ratify needed by the states and put the new Constitution into place, and that’s why we have ten amendments that specifically tell folks what the national government absolutely, positively cannot fucking do in relation to its people.
The First Amendment Was Not Controversial, Though.
Concepts such as free speech and religion free of government interference were cornerstones of Revolutionary thought well before the Revolution. Both had been touted as cornerstones of actual democracy and the basic rights of man by influencers on the founding fathers, such as John Locke, as well as dating back as far as Rome itself. It was, for many of the people that were tasked with forming the Constitution, the equivalent of “Well, no fucking shit!” when proposed, and, surprisingly, it is the very lack of controversy or embellishment that makes the First Amendment one of the most “open to interpretation” rights when addressed by the courts.
See, the initial proposed amendment was not 45 words long. It was as follows:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.
That’s…more than 45 words and one sentence, eh? And if you compare it to the actual text of the First Amendment, it sure as hell goes a lot more in depth in what is and is not protected, right? Right. I mean, it’s pretty much setting out exactly what the prohibition on the right are.
Then, of course, folks got out the red pen, presumably in the sake of brevity, and knocked out almost every in-depth prohibition to come up with the current version of the First Amendment which subsequently passed almost without any debate. Likely because, as stated before, the concepts espoused by the Amendment were not new and unique and were genuinely considered to be “No Shit” non-controversial guarantees of rights. In this era and time, when the men who were drafting and approving these things had fought a war based on their freedom to speak their minds, and when the very concept pre-dated even that war by hundreds of years, they clearly felt nothing more needed to be said on the matter.
Brevity May Be The Soul Of Wit, But It Sucks For Interpretation.
The problem with that, as we’ll come to see, is that courts sort of rely on legislative intent when determining what a particular thing is meant to mean. And to determine legislative intent, they look not only to prior versions of the documents that were proposed and then edited later, but also to the debate and discussion surrounding the document prior to passage. So where you have, generally, one revision that passed with no debate or discussion on the meaning, what you are signalling to the future is…not there. There is no record of the intent behind the finalization of the Amendment outside of the historical context of the time. Which leaves it open to constitutional interpretation in the standard schools of thought when the matters come to the courts.
Which, you know, is a bad thing when what you’re talking about is literally a part of the supreme law of the land. The way the priority of laws works is governed first by the Supremacy Clause, which states as follows:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. art. VI, clause 2.
Essentially, the Constitution, which the First Amendment is a part of, controls all the other laws and makes everyone in the land beholden to it. So, in this case, a little fucking guidance would have been nice. Instead, what has happened, and what continues to happen, is the evolution of the First Amendment by interpretation and rulings and the changing times.
And boy, like Bob Dylan said, when it came to the First Amendment those times certainly were gonna be a-changing.
Which is where we’ll pick up next time when we start talking about the first First Amendment cases and how that shit played out.