What does the First Amendment mean?

The First Amendment is just one sentence: "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." If we focus just on the part of that sentence concerning the news media, it is: "Congress shall make no law ... abridging the freedom of speech, or of the press." What could be simpler? But it turns out to be complicated enough to have spawned thousands of books and law journal articles. And although one Supreme Court justice (Justice Hugo Black) declared that " 'No law' means no law," that was wishful thinking on his part. A lot of laws and a lot of judicial interpretation have tried to pinpoint what limits of speech and press might be acceptable under the terms of the First Amendment.

The First Amendment meant one thing to the men who penned it and those who approved it as an amendment to the United States Constitution in 1791. It has come to mean something very different over time. It did not come to be the cornerstone of the law of the press until the twentieth century.

And what exactly did it mean to those who wrote it and made it part of the Constitution? Historians do not speak on this question with a single voice, but most agree that, despite some differences in emphasis among the founders, the most important word in the free-press clause of the First Amendment— "Congress shall make no law ... abridging freedom of speech or of the press" is the first word: "Congress." In fact, James Madison had proposed an amendment in which the states, as well as the federal government, would have been prohibited from interfering with freedom of the press, but that amendment was defeated. What remained was a prohibition of federal laws abridging freedom of the press, not state laws. As Thomas Jefferson explained to Abigail Adams in 1804: "While we deny that Congress have a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right, to do so." More than once, when Jefferson was President (1801-1809), he encouraged political allies to sue the press for libel if they were criticized in the newspapers—so long as they sued in state courts.

It would be more than a century before the modern First Amendment began to take shape. It was not until 1925 (in the case of Gitlow v. New York) that the Supreme Court announced that the First Amendment applied to the states, not just the federal government. It was not until 1931 that the Supreme Court first overturned a state law restricting free speech or press for violating the First Amendment.

Beginning in the 1920s and growing more secure since the famous 1964 case of New York Times v. Sullivan, a Supreme Court view emerged that the First Amendment permits a distinction between "high" value and "low" (or at least "lower") value speech. Speech about elections, politics, and public policy, including speech critical of government or of government officials, is high value speech. This is the kind of speech that was most on the minds of the founders. Supreme

Court decisions have determined that it is very important to protect political speech but that some kinds of speech are clearly unprotected—demonstrably false advertising, libelous speech or defamation, speech enacting a criminal conspiracy, or "fighting words" that are intended to cause and may have the effect of causing violence.

The speech at issue in the Sullivan case was an advertisement in the New York Times designed to raise funds to defend Martin Luther King, Jr. against a lawsuit in Alabama. L. B. Sullivan, the Montgomery, Alabama public safety commissioner, although not named in the advertisement, was the public official who oversaw Montgomery's police force, which was criticized in the ad. Sullivan sued the Times for publishing defamatory statements. The US Supreme Court unanimously found in favor of the Times. Its decision certified that libel suits against news organizations by public officials would be very, very difficult to win. The public official would have to show not only that the news organization published false and damaging statements but also that it did so knowingly and with "malice."

The distinction between high value speech and other speech, as well as other distinctions and doctrines that shape First Amendment law, have arisen in twentieth-century judicial decisions. They were unknown to the founders. So the First Amendment has varied across US history. What has become invariant is the pride the US press takes in the fact that journalists are the only occupational group to be mentioned in the US Constitution (".. .or of the press"). What is also clear is that US judicial doctrine about freedom of the press, for all of its variations, is less likely to approve government regulation of or limitations on wide-open free speech and free press than any other contemporary democratic country, even countries with substantial and seriously defended liberty of the press.

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