Reflections on Freedom of Speech and the First Amendment

Reflections on Freedom of Speech and the First Amendment

George Anastaplo
Copyright Date: 2007
Pages: 336
https://www.jstor.org/stable/j.ctt2jcjxf
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    Reflections on Freedom of Speech and the First Amendment
    Book Description:

    The guarantee of free speech enshrined in the U.S. Bill of Rights draws upon two millennia of Western thought about the value and necessity of free inquiry. Acclaimed legal scholar George Anastaplo traces the philosophical development of the idea of free inquiry from Plato's Apology to Socrates to John Milton's Areopagitica. He describes how these seminal texts and others by such diverse thinkers as St. Paul, Thomas More, and John Stuart Mill influenced the formation and the earliest applications of the First Amendment. Anastaplo also focuses on the critical free speech implications of a dozen Supreme Court cases and shows how First Amendment interpretations have evolved in response to modern events. Reflections on Freedom of Speech and the First Amendment grounds its vision of America's most basic freedoms in the intellectual traditions of Western political philosophy, providing crucial insight into the legal challenges of the future through the lens of the past.

    eISBN: 978-0-8131-3197-9
    Subjects: Law, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Preface
    (pp. xi-xviii)
    George Anastaplo
  4. Part One
    • 1. Plato’s Apology of Socrates
      (pp. 3-8)

      TheApology of Socratesis one of the sacred texts upon which Western Civilization rests. TheApologyconsists of three speeches, re-created by Plato, which suggest what Socrates said in his defense during his capital trial in Athens in 399 b.c. The first speech is in response to the charges and evidence presented against him; the second is his contribution to the penalty-determination phase of the proceedings after he was found guilty; the third is in response to the sentence of death.

      The indictment of Socrates, evidently initiated primarily by Anytus and Meletus, is said by him to present charges...

    • 2. The Ministry of St. Paul
      (pp. 9-13)

      The Western tradition, upon which Anglo-American constitutionalism very much depends, is rooted in both the Classics and the Bible. Freedom of speech, which is so critical to American constitutionalism, claims the career of Socrates as one of its sources. Another source may be discovered, with some plausibility, in the career of St. Paul.

      Paul (born Saul, of Tarsus) exhibits in his makeup the combined influences of Judaism, the Roman Empire, and the Greek language. By his time, we are told, there may have been more Jews living in other places governed by Rome than were living in the Holy Land....

    • 3. Thomas More and Parliamentary Immunity (1521)
      (pp. 14-19)

      A 1521 petition to King Henry VIII, by Sir Thomas More as Speaker of the House of Commons, is said to be the earliest document in which parliamentary freedom of speech is recognized. It is also said that there had been, theretofore, thepracticeof respecting parliamentary immunity. Such immunity may even be intrinsic to (as well as vital for) the workings of any legislative body that is entrusted with serving the good of a community.

      The precise term “freedom of speech” is not used in More’s petition (which is set forth in Appendix D of this volume). The closest...

    • 4. John Milton’s Areopagitica (1644)
      (pp. 20-25)

      “As everyone knows,” we have been reminded by Barbara K. Lewalski, “[John] Milton’s argument [in theAreopagitica], couched in poetic imagery and high rhetoric, has become a cornerstone in the liberal defense of freedom of speech, press, and thought.” This document is particularly important with respect to freedom of the press, as traditionally understood. Freedom of speech, insofar as itisdifferent, can be said to depend, for its cornerstone, upon the traditional parliamentary immunity, an immunity reaffirmed in such declarations as the English Bill of Rights of 1689.

      The “high rhetoric” referred to begins with the title and epigraph...

    • 5. William Blackstone, Patrick Henry, and Edmund Burke on Liberty (1765–1790)
      (pp. 26-35)

      William Blackstone brought his four-volumeCommentaries on the Laws of Englandto a close with the chapter “Of the Rise, Progress, and Gradual Improvements, of the Laws of England.” He proposed “to mark out [there] some outline of an English juridical history, by taking a chronological view of the state of our laws, and their successive mutations at different periods of time.” This 1769 Blackstonian account, of “an English juridical history,” provided many American lawyers (for a century thereafter) an instructive, if not even an authoritative, account of English (and hence American) constitutional history prior to 1776.

      “The several periods,...

    • 6. The Declaration of Independence (1776); the Northwest Ordinance (1787)
      (pp. 36-42)

      The Declaration of Independenceisfor the United States its founding document. It is this not only because it asserts the independence (that is, the very existence) of the United States, but also because it suggests the principles upon which its regime rests. Critical to those principles was the recognition that “a decent Respect to the Opinions of Mankind require[d] that [this People] should declare the causes which impel[led] them to the Separation” that they were announcing.

      It is assumed throughout the Declaration that it is important to have, and to give, reasons for what a people and its governments...

    • 7. Constitutionalism and the Workings of Freedom of Speech
      (pp. 43-48)

      The legislative immunity of Members of Congress, confirmed in Article I, Section 6, of the Constitution, provides a reminder of what a sovereign People in turn require and are entitled to. We have seen that parliamentary immunity is essential if Congress is to be able to face up adequately to the more controversial issues of the day. That immunity is reinforced by such provisions as those for the fixed terms of Members of Congress and for “Compensation for their Services, to be ascertained by law.”

      The freedom of speech by Members of Congress is guarded somewhat against abuse by the...

    • 8. The Virginia Statute of Religious Freedom (1786)
      (pp. 49-56)

      The Virginia Statute of Religious Freedom is regarded as one of the great American constitutional documents. It may well be the most influential document ever issued on its own by one of the States in the Union. On the other side of the ledger, so to speak, are the also quite influential Secessionist declarations issued by eleven States, including (unfortunately) Virginia, in 1860–1861.

      The 1786 Virginia Statute (set forth in Appendix E of this volume) is anticipated by the 1776 Virginia Declaration of Rights. Rights are identified in 1776 as “pertain[ing]” to “the good people of Virginia,” and to...

    • 9. The Emergence of a National Bill of Rights (1789–1791)
      (pp. 57-63)

      The Constitutional Convention finished its work in September 1787. By July 1788, eleven of the original Thirteen States had ratified the proposed Constitution, more than enough to set the new constitutional machinery into motion. In the spring of 1789, the First Congress met pursuant to the directions laid down in the Constitution and by the retiring Articles of Confederation Congress.

      Among the many matters to be considered during the First Session of the First Congress was the preparation of proposed “Bill of Rights” amendments to the Constitution. The lack of a separate bill of rights in the proposed Constitution had...

    • 10. The Organization of the First Amendment
      (pp. 64-70)

      The First Amendment is the only article in the Bill of Rights that is explicitly directed at the Congress. Two other proposed amendments, the first and the second of the twelve proposals sent to the States in September 1789, also clearly dealt with the Congress. Those two, which were amendments to the structure of the Constitution rather than elements of the future Bill of Rights, were not ratified by the States at that time.

      The First Amendment itself is divided into two parts. It can be said, loosely speaking, that the first part deals with the religious life of the...

    • 11. The Sedition Act of 1798
      (pp. 71-77)

      Ulysses S. Grant, in his remarkable post-Civil War memoirs, spoke of France as “the traditional friend and ally of the United States.” Monarchical France had indeed been a critical supporter of Americans during their Revolution. But France’s own revolution, a decade later, very much disturbed the more conservative elements in this Country.

      Particularly threatening was the Terrorism that was believed to be exported by the new French regime. It seems, in fact, that both the term “Terrorism” and the more fearful mode of responding to it go back for us to the 1790s. One consequence of the fear in this...

    • 12. John Stuart Mill’s On Liberty (1859)
      (pp. 78-84)

      “The subject of this Essay,” John Stuart Mill explains at the outset of hisOn Liberty,is “Civil, or Social Liberty: the nature and limits of the power which can be legitimately exercised by society over the individual.” An important branch of this subject is, he says, “the Liberty of Thought, from which it is impossible to separate the cognate liberty of speaking and of writing.” The Liberty of Thought and Discussion, to which chapter 2 ofOn Libertyis devoted, is “a subject which for now three centuries has been so often discussed.”

      Mill’s “three centuries” take us back...

    • 13. Freedom of Speech and the Coming of the Civil War
      (pp. 85-92)

      Once a generation of Americans had become accustomed to an everyday exercise of liberty in a constitutional regime characterized both by self-government and by the rule of law, the recognition of universal equality that seemed to have been endorsed in the Declaration of Independence became harder to ignore.Libertythus came to be invoked in the United States by those (anticipated by John Woolman, much earlier) who condemned slavery and wanted to abolish it altogether. Liberty was also invoked by those who defended slavery and wanted not only to maintain it but also to expand it into ever more Territories...

  5. Part Two
    • 1. The Naive Folly of Realists: A Defense of Justice Black (1937–1971)
      (pp. 95-100)

      A distinguished legal scholar recently assessed the career of Hugo L. Black as a constitutional fundamentalist. This assessment recognized Justice Black as the preeminent judicial champion of the First Amendment. He was also recognized as one of the great United States Supreme Court Justices.

      This discussion by a would-be realist questioned the assumption that there is an “original understanding” of constitutional provisions to be relied upon. Or, if there is such an understanding, it was questioned whether it can be known. Or, if it can be known, it was questioned whether it can or should be relied upon by those...

    • 2. Schenck v. United States (1919); Abrams v. United States (1919)
      (pp. 101-107)

      Schenckv.United Statesmay be the most important case interpreting and applying the Speech and Press provisions of the First Amendment.Schenckdealt with what may have been the first significant legislation bearing directly on these provisions since the Sedition Act of 1798. The United States Supreme Court never had occasion to review any convictions under the Sedition Act.

      Six months afterSchenck, the Supreme Court disposed of the appeals inAbramsv.United States, appeals that challenged much harsher applications of the Espionage Act of 1917 than those seen inSchenck. TheAbramsconvictions, too, were upheld, with...

    • 3. Debs v. United States (1919); Gitlow v. New York (1925)
      (pp. 108-115)

      One week afterSchenckv.United States(1919), the United States Supreme Court confirmed the conviction (pursuant to the Espionage Act of 1917) of Eugene V. Debs for attempting to obstruct recruitment for the armed forces of the United States during the First World War. Justice Oliver Wendell Holmes again wrote for a unanimous Court, observing, “The chief defenses upon which the defendant seemed willing to rely [included] that based upon the First Amendment to the Constitution, disposed of inSchenckv.United States.” Debs had been sentenced to ten years’ imprisonment, Schenck to six months.

      Debs was born in...

    • 4. Winston S. Churchill and the Cause of Freedom
      (pp. 116-122)

      Winston S. Churchill was perhaps the greatest hero of the Second World War. The heroic seems always to have appealed to him. He was particularly effective in dramatizing heroic exploits—his own, those of his illustrious family, those of comrades (such as the Royal Air Force), or those of his country and its allies.

      Heroism was particularly to be enlisted in the cause of freedom, a cause which required the vigorous repudiation of enslavement. It is freedom that Churchill made so much of in his 1940 speech upon, at last, being entrusted with the office of Prime Minister. Particularly to...

    • 5. Dennis v. United States (1951); the Rosenberg Case (1950–1953)
      (pp. 123-132)

      A dozen leaders of the Communist Party of the United States were indicted in July 1948 for violation of the conspiracy provisions of the Smith Act (the Alien Registration Act of 1940). “As the first federal peacetime sedition statute since 1798,” theEncyclopedia of the American Constitutionrecalls, “the Smith Act in its most significant section made it a crime to ‘knowingly, or willfully, advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force and violence.” And, like the Sedition Act of 1798, this 1940 legislation was...

    • 6. Cohen v. California (1971); Texas v. Johnson (1989)
      (pp. 133-139)

      A young man, Paul Richard Cohen was convicted during the Vietnam War of disturbing the peace and sentenced to thirty days’ imprisonment for displaying on his jacket while in a corridor of a California courthouse a provocatively vulgar dismissal of the draft. The vulgarity employed by him was known to be offensive and, indeed, was likely chosen because of the effect it might create. A similar public expression directed against any other targets (including, say,opponentsof the Vietnam War) might have been similarly resented by the policeman who arrested this young man.

      A legal scholar has observed in the...

    • 7. The Pentagon Papers Case (1971)
      (pp. 140-147)

      The publication of substantial excerpts from a forty-seven-volume “Top Secret” Vietnam War–related report began in theNew York Timeson June 13, 1971, and continued for two more daily installments before being enjoined in the Courts of the United States until June 30, at which time it resumed for seven more installments. In the meantime, similar publication started in theWashington Post, theBoston Globe, and theSt. Louis Post-Dispatch, all of which evidently drew extensively on other copies of the thousands of pages originally made available to theNew York Times. Each newspaper was similarly enjoined as it...

    • 8. Obscenity and the Law
      (pp. 148-154)

      It is obvious, at least to citizens accustomed to a republican regime, that freedom of speech and freedom of the press are essential to effective self-government. These are freedoms (we have seen) that can usefully be traced back, in the Anglo-American tradition, to the parliamentary immunity needed by legislators if they are to be able to do what is expected of them. This is the argument made by Thomas More in 1521, justifying thereby a practice (or, at least, an expectation) already familiar to parliamentarians.

      Such immunity means that discussion of public issues should, in the normal course of things,...

    • 9. Private Property and Public Freedom
      (pp. 155-161)

      A challenging discussion of the relations between economic freedom and political freedom (especially freedom of speech) is provided in the opening essay of Milton Friedman’sCapitalism and Freedom. Particularly challenged by him, almost half a century ago, were “intellectuals” who are socialist, or at least somewhat anticapitalist, in their inclinations. Both he and those whom he challenges are assumed to be in favor of personal freedom.

      The author is a noted economist, one of the dozen most influential in the twentieth century. As a quite decent partisan of the free market, he continues a tradition in which Adam Smith particularly...

    • 10. Buckley v. Valeo (1976)
      (pp. 162-169)

      The Federal Election Campaign Act of 1971, as amended in 1974, was reviewed in 1975–1976 by the United States Supreme Court inBuckleyv.Valeo. The Court produced a remarkable document, featuring a 230-page Per Curiam Opinion. This “book” looks like a Congressional study, if not even like a part of the voluminous federal budget.

      The Per Curiam Opinion, which very much bears on the Milton Friedman essay just discussed, includes this preliminary description of those parts of the Act which are of particular interest for us:

      The intricate statutory scheme adopted by Congress to regulate federal election campaigns...

    • 11. The Regulation of Commercial Speech
      (pp. 170-176)

      The extent to which commercial speech can claim First Amendment protection is suggested by what the United States Supreme Court has done to official efforts (by State courts, State bars, and others) to restrict severely the advertising that lawyers might do. What the Court has now done about legal advertising was anticipated by what it had done inVirginia State Board of Pharmacyv.Virginia Citizens Consumer Council(1976).The Virginia Pharmacy Casehas been described thus in theEncyclopedia of the American Constitution:

      Traditionally commercial speech was assumed to be outside the First Amendment’s protection. This decision made clear...

    • 12. The Universal Declaration of Human Rights (1948)
      (pp. 177-182)

      The Universal Declaration of Human Rights was promulgated by a 1948 resolution of the United Nations General Assembly. Its Preamble opens with the observation that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” No particular country or people is provided for by name, but rather all of humanity.

      Thus, the United Nations General Assembly proclaims this Universal Declaration “as a common standard of achievement for all peoples and all nations.” Unlike, say, the English Magna Carta or the...

    • 13. The Future of the First Amendment?
      (pp. 183-188)

      I ventured three decades ago to advocate the abolition of broadcast television in the United States. There were no “takers” in response to this proposal, even though it was published in several places (besides in myAmerican Moralist). And yet, would this not have been an eminently prudent measure on behalf of the Common Good?

      It was already evident in the 1970s that the then relatively new television industry was having amostlyadverse effect on our way of life. Particularly distressing was what was happening to the character of our people. Various institutions, ranging from our religious organizations to...

  6. Appendixes
    • Appendix A The Declaration of Independence (1776)
      (pp. 189-192)
    • Appendix B The United States Constitution (1787)
      (pp. 193-204)
    • Appendix C The Amendments to the United States Constitution (1791–1992)
      (pp. 205-214)
    • Appendix D Thomas More, Petition to Henry VIII on Parliamentary Freedom of Speech (1521)
      (pp. 215-217)
    • Appendix E The Virginia Statute of Religious Liberty (1786)
      (pp. 218-220)
    • Appendix F Some Stages of the Religion/Speech/Press/Assembly/Petition Provisions in the First Congress (1789)
      (pp. 221-223)
    • Appendix G The Sedition Act (1798)
      (pp. 224-225)
    • Appendix H The Virginia Resolutions (1798)
      (pp. 226-228)
    • Appendix I Report of a House of Delegates Minority on the Virginia Resolutions (1799)
      (pp. 229-235)
    • Appendix J Thomas Jefferson, the First Inaugural Address (1801)
      (pp. 236-240)
    • Appendix K Schenck v. United States Leaflet (1917)
      (pp. 241-245)
    • Appendix L The Universal Declaration of Human Rights (1948)
      (pp. 246-252)
    • Appendix M George Anastaplo, On the Alcatraz Imprisonment of a Convicted Soviet Spy (1954)
      (pp. 253-268)
    • Appendix N George Anastaplo, An Obscenity-Related Case from Dallas (1989–1990)
      (pp. 269-299)
    • Appendix O Cases and Other Materials Drawn On
      (pp. 300-304)
  7. Index
    (pp. 305-320)
  8. About the Author
    (pp. 321-326)