The First Amendment as we know it today didnt exist until the 60s

Reading the First Amendment isnt easy. Consider the text:

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.

Neither the Words nor the History Helps Much

The words themselves arent much help. Reading the first word, Congress, literally would leave the president, the military, fifty governors, and your local cops free to ignore our most important set of constitutional protections. Reading the fourth and fifth words, no law, literally would wind up protecting horrible verbal assaults like threats, fraud, extortion, and blackmail. The three most important words in the First Amendmentthe freedom of the words that introduce, modify, and describe the crucial protections of speech, press, and assembly, simply cannot be read literally. The phrase the freedom of is a legal concept that has no intrinsic meaning. Someone must decide what should or should not be placed within the protective legal cocoon. Finally, the majestic abstractions in the First Amendment, like establishment of religion, free exercise thereof, peaceful assembly, and petition for a redress of grievances do not carry a single literal meaning. In the end, each of the abstractions protects only the behavior we think it should protect.

So much for the literal text.

History (or whats sometimes called originalism these days) is even worse as a firm guide to reading the First Amendment. The truth is that the First Amendment as we know it today didnt exist before Justice William Brennan Jr. and the rest of the Warren Court invented it in the 1960s. In fact, history turns out to be the worst place to look for a robust First Amendment. Thomas Jefferson thought free speech was a pretty good idea, but the ink wasnt dry on the First Amendment before President Adams locked up seventeen of the twenty newspaper editors who opposed his reelection in 1800. One of the jailed editors was Benjamin Franklins nephew Benjamin Franklin Bache. He died in jail. Despite the newly enacted First Amendment, not only did the federal courts remain silent in the face of Adamss massive exercise in government censorship; they often initiated the prosecutions. Matthew Lyon, Vermonts only Jeffersonian member of Congress, was jailed for four months and fined $1,000 for criticizing the president in his newspaper. Lyon had the last word, though. He was released just in time to cast Vermonts swing vote for Thomas Jefferson when the presidential election of 1800 was thrown into the House, helping to seal Adamss defeat.

The nineteenth and early twentieth centuries were free-speech disasters. Before the Civil War, antislavery newspapers were torched throughout the North. All criticism of slavery was banned in the South. Slaves were even forbidden to learn to read. During the Civil War, President Lincoln held opponents of the war in military custody for speaking out against it. After the Civil War, labor leaders went to jail in droves for picketing and striking for higher wages. Labor unions were treated as unlawful conspiracies. Radical opponents of World War I were sentenced to ten-year prison terms and eventually deported to the Soviet Unionfor leafleting. In 1920, Eugene Debs polled more than one million votes for president from his prison cell in the Atlanta federal penitentiary, where he was serving a ten-year jail term for giving a speech in 1917 praising draft resisters. Released in 1921, Debs, his health broken, was banned from voting or running for office; he died in 1926. After World War II, fear of communism translated into jail or deportation for thousands of political radicals guilty of saying the wrong thing or joining the wrong group, culminating in 1951 with the Supreme Courts affirmance of multiyear jail terms for the leadership of the American Communist Party, despite its status as a lawful political party.

So much for history, unless you want to erase the First Amendment.

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A Tale of Two Readings

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The First Amendment as we know it today didnt exist until the 60s