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Free Speech, Free Press:

A Short History and Discussion

of these First Amendment Guarantees

By Joyce Gemperlein

Special to firstamendmentfuture.org

The U.S. Constitution was signed on Sept. 17, 1787, but it did not spell out various civil liberties -- what we now know as the Bill of Rights -- including the cherished ones in the First Amendment.

Were members of the Constitutional Convention simply itching to get home after a hot summer of work?

Not entirely.  

Charles Haynes, senior scholar at the First Amendment Center in Arlington, Va., and Nashville, TN., says there were a number of reasons that the Bill of Rights came later

• Many delegates (who were called Federalists because they favored a strong central government) did not think a listing of rights was necessary because various states had their own bills. Some members of the Constitutional Convention argued that because the Constitution itself didn’t repeal those state documents (and even though many states didn’t have their own), restating those rights in the national document would be redundant? 
• Other key architects, including James Madison, thought it would be dangerous to list the fundamental rights of citizens of the United States. He was concerned that by listing rights, it would signal that the federal government had something to do with identifying them – and then limiting them. He wanted to keep the government out of the matter. He reasoned that if the government didn’t mention something, it had nothing to do with it. Madison wanted the system of checks and balances, of which he was the key architect, to do the job.
• Another argument was that if some rights were listed, all of them had to be -- an impossible task.
• Anti-Federalists, those who were opposed to a strong central government, wanted a complete listing of individual rights because they feared that, without it, the new government could turn into a tyranny.

Eventually, to get the Constitution signed by the Anti-Federalists, the Federalists agreed to have a Bill of Rights drawn up by James Madison. It became law on Dec. 15, 1791 when Virginia, the 11th state needed to ratify, signed it.

Eventually, Madison drew up a Bill of Rights based in part on various states’ bills of guaranteed freedoms. He boiled them down with his own ideas into one document that was signed by the requisite number of 11 states, the last being Virginia, on Dec. 15, 1791.

This, of course, was first on the ratified list:

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.

These 45 words -- the First Amendment -- have never been revised, and are considered the bedrock of freedom in the United States. Nonetheless, the First Amendment is a living document that is continually being debated and reinterpreted – and, sadly, violated -- as our nation and the world we live in grow and change.

When a First Amendment case is taken to court (ultimately to the U.S. Supreme Court) as a nation we are asking, in essence: “Does it mean this or that?” or “What does it mean when it is applied to this real-life circumstance?” Historians say that the founding fathers meant for the speech and press parts of the First Amendment to refer to only to critical speech aimed at the government. But this meaning has expanded over the centuries to bear on all citizens and all types of speech and press – slogans on T-shirts, flag-burning, pornography, raunchy music lyrics, television shows, the Internet, motion pictures, what you may yell at a football game.

The First Amendment didn’t really get a workout in the courts for more than 100 years after the Bill of Rights was put into effect. In fact, only 12 cases made it up to the highest court of the land between 1791 and 1889. This was because “the federal government was not attempting to limit the rights of its citizens,” writes law professor Michael Gibson, who has studied that period of American history. He adds, though, that it was also because the federal courts at that time were insisting that the First Amendment and the rest of the Bill of Rights just didn’t apply to the states. In other words, the federal government and its courts thought that free speech and press situations should be handled at the state level.

Robert J. Wagman, writing in “The First Amendment Book,” says that while you’d expect the last decades of the nineteen century and the first few of the twentieth to have been a “proving ground for the First Amendment . . .one cannot review this era without being struck by the outright hostility of the judiciary to free speech claims, whether they were being asserted by a radical, a publisher, or a businessman.”

It took 116 years after the Bill of Rights was ratified for the U.S. Supreme Court to be called upon to define exactly what was meant by “freedom of the press.”

Since then, the high court has been asked time and again to clarify the shades of meaning and scope of that phrase. Some cases touch upon the public’s right to know, what type of speech constitutes a “clear and present danger” to the government, and the distribution of leaflets promoting Communism – to name only a few subject areas.

What all the cases show, however, is that while everyone says they are in favor of a free press and guaranteed free speech, differences of opinion about those subjects – in themselves manifestations of the First Amendment at work – abound.

As time has gone by, the free press and speech guarantees of the amendment have bestowed many rights upon journalists – and students and student journalists.

One historic case that tested how far the press can go in the public interest occurred in 1971 when New York Times reporter Neil Sheehan obtained documents now called the Pentagon Papers from Harvard historian Daniel Ellsberg. The Pentagon Papers were top-secret documents detailing the United States’ involvement in Vietnam since 1940. Ellsberg had helped write the document.

The Times began publishing stories based on the papers. The government got a court order and, for a dismaying 15 days, successfully stopped the paper from printing the stories. It  was the first time in U.S. history that any executive successfully obtained what is called prior restraint against a publication for national security reasons. Eventually the press prevailed.

Student Rights

The question of students’ rights to free speech and press have also often been a focus of U.S. Supreme Court First Amendment cases.

One occurred in 1969 when officials at a Des Moines, Iowa, school barred several students from wearing black armbands in a non-violent protest of U.S. involvement in the Vietnam War and to mourn the dead on all sides. The students wore the armbands to school, were suspended and sued, claiming violation of their First Amendment rights.

In Tinker vs. Des Moines, the high court held that school officials may not censor student speech unless school officials reasonably forecast that the speech will cause a material and substantial disruption of school activities or collide with the rights of others. Just fearing a disturbance is not enough.

In another historic case, Hazelwood School District vs. Kuhlmeier, (1988) the Court held that school officials can censor school-sponsored student publications when they are related to legitimate educational concerns.

Students in this district had wanted to include student-written articles about teen pregnancy and the impact of divorce on kids in the school newspaper. The principal objected, believing they were inappropriate for the younger students and unfair to the pregnant students who might be identified from the text of the article. He deleted the articles from the school newspaper. Three students sued, claiming a violation of their First Amendment rights.

The justices ruled that there is a difference between private student speech and student speech in school-sponsored activities, such as a publication created as part of a class and curriculum. The school administration thus properly acted as editor of the newspaper.

The bottom line of these historic cases is that students do not lose their constitutional rights at the schoolhouse door. However – and that’s a big however -- school officials’ duties to provide a safe learning environment must be balanced against students’ free-expression rights.

Fears and Threats

There are many cases in history when we have looked the other way and not been vigilant in guarding the First Amendment privileges of speech and free press. Many of these have occurred when our nation has gone to war, or feels threatened.

Despite the homage that is universally paid to our free speech and press, we have watched as these situations, among others, have occurred:

• In 1798, Congress passed a law called the Sedition Act, which supporters said was needed as a security measure. The Sedition Act was really a tool for the ruling party, which did not want to be criticized. The law made it illegal to criticize by speech or writing the Constitution or government of the United States. Although this seemed an obvious violation of the First Amendment and a direct attack upon newspapers, it also was an effort to keep new political parties from forming or making headway. The Sedition Act was very controversial and thousands of people signed petitions to get the government to repeal it. When Thomas Jefferson, who had opposed it, became president in 1800, he pardoned the 10 (of 25 people charged) who had been convicted under the law. Without being challenged in the courts, the act then died.
• In 1864, President Abraham Lincoln jailed without trial 13,000 civilians who had expressed pro-Southern views.
• During World War I Congress passed the Espionage Act of 1917, which resulted in the conviction of three people for publishing a pamphlet sympathetic to Germany.
• From about 1948 to the mid-1950s, a fear of Communists fanned by Sen. Joe McCarthy caused the interrogations before a committee of people in the media, in the motion picture industry, politics and the military. These witch hunts for unapproved thoughts and political stances ruined the careers and lives of many.
•  Right now, an unprecedented number of journalists are facing contempt citations for protecting the sources of their stories.
•  The attack on the World Trade Center and the Pentagon on Sept. 11, 2001 set off a new wave of secrecy, people arrested and held without being charged, and concerns about violations of the public’s right to know in the administration of President George W. Bush.

As much or perhaps even more than ever, the free speech and press provisions of the First Amendment are in the news. The practices of the new Department of Homeland Security, the privacy of e-mail and instant messaging, and the “adult” content or pornography that can be shipped unbidden into any home hooked up to the Internet – all of these issues and many more will challenge the strength of those 45 words written in 1791.

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