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Freedom of speech is the right to speak, write, and share ideas and opinions without facing punishment from the government. The First Amendment protects this right by prohibiting Congress from making laws that would curtail freedom of speech.

Even though freedom of speech is protected from infringement by the government, the government is still free to restrict speech in certain circumstances. Some of these circumstances include:

• Obscenity and Indecency – In Alliance for Community Media v. FCC , the Supreme Court found that obscenity and child pornography have no right to protection from the First Amendment, and as such, the government has the ability to ban this media altogether. But when it comes to indecency, which is generally defined by the courts as something describing or depicting offensive sexual activity, the Supreme Court has found this speech protected. But the government can regulate this speech on radio and television, so long as it’s for a compelling reason and is done in the least restrictive manner. 
• Defamation – Private and public figures are able to sue someone for statements they have made. Public figures must prove that the person made the statement with malice , which means knowing the statement was false or having a reckless disregard for the truth or falsity of the statement. (See  New York Times v. Sullivan ) . Private figures must prove the person failed to act with reasonable care when they made the statement. 
• Incitement – If a person has the intention of inciting the violations of laws that is imminent and likely, while directing this incitement at a person or groups of persons, their speech will not be protected under the First Amendment. This test was created by the Supreme Court in Brandenburg v. Ohio . 
• Fighting words  

While the public has a right to freedom of speech when it comes to the U.S. government, the public does not have this right when it comes to private entities. Companies and private employers are able to regulate speech on their platforms and within their workplace since the First Amendment only applies to the government. This right allowed Facebook, Instagram, and Twitter to ban President Donald Trump from their sites in 2021 without legal repercussion. Companies like Facebook and YouTube were also able to ban misleading information on Covid-19 during the 2020 pandemic.

The Supreme Court recently affirmed that private entities are not restricted by the First Amendment in the case Manhattan Community Access Corporation v. Halleck . Manhattan Neighborhood Network is a nonprofit that was given the authority by New York City to operate public access channels in Manhattan. The organization decided to suspend two of their employees after they received complaints about a film the employees produced. The employees argued that this was a violation of their First Amendment freedom of speech rights because they were being punished due to the content of their film. The Supreme Court held that Manhattan Neighborhood Network was not a government entity or a state actor , so the nonprofit couldn’t be subjected to the First Amendment.

In another case, Nyabwa v. Facebook , the Southern District of Texas also affirmed that private entities are not subject to the First Amendment. There, the plaintiff had a Facebook account, which spoke on President Donald Trump’s business conflicts of interest. Facebook decided to lock the account, so the plaintiff was no longer able to access it. The plaintiff decided to sue Facebook because he believed the company was violating his First Amendment rights. The court dismissed the lawsuit stating that the First Amendment prevents Congress and other government entities from restricting freedom of speech, not private entities. 

[Last updated in June of 2021 by the Wex Definitions Team ] 

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What Does Free Speech Mean?

Among other cherished values, the First Amendment protects freedom of speech. The U.S. Supreme Court often has struggled to determine what exactly constitutes protected speech. The following are examples of speech, both direct (words) and symbolic (actions), that the Court has decided are either entitled to First Amendment protections, or not.

The First Amendment states, in relevant part, that:

“Congress shall make no law...abridging freedom of speech.”

Freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag). West Virginia Board of Education v. Barnette , 319 U.S. 624 (1943).
• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”). Tinker v. Des Moines , 393 U.S. 503 (1969).
• To use certain offensive words and phrases to convey political messages. Cohen v. California , 403 U.S. 15 (1971).
• To contribute money (under certain circumstances) to political campaigns. Buckley v. Valeo , 424 U.S. 1 (1976).
• To advertise commercial products and professional services (with some restrictions). Virginia Board of Pharmacy v. Virginia Consumer Council , 425 U.S. 748 (1976);  Bates v. State Bar of Arizona , 433 U.S. 350 (1977).
• To engage in symbolic speech, (e.g., burning the flag in protest). Texas v. Johnson , 491 U.S. 397 (1989);  United States v. Eichman , 496 U.S. 310 (1990).

Freedom of speech does not include the right:

• To incite imminent lawless action. Brandenburg v. Ohio , 395 U.S. 444 (1969).
• To make or distribute obscene materials. Roth v. United States , 354 U.S. 476 (1957).
• To burn draft cards as an anti-war protest. United States v. O’Brien , 391 U.S. 367 (1968).
• To permit students to print articles in a school newspaper over the objections of the school administration.  Hazelwood School District v. Kuhlmeier , 484 U.S. 260 (1988).
• Of students to make an obscene speech at a school-sponsored event. Bethel School District #43 v. Fraser , 478 U.S. 675 (1986).
• Of students to advocate illegal drug use at a school-sponsored event. Morse v. Frederick, __ U.S. __ (2007).

Disclaimer: These resources are created by the Administrative Office of the U.S. Courts for use in educational activities only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on legislation. 

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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First Amendment

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights—a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

Bill of Rights

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton , gathered in Philadelphia to draft a new U.S. Constitution .

Antifederalists, led by the first governor of Virginia , Patrick Henry , opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for people’s individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists , promised a concession to the antifederalists—a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 – the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

First Amendment Text

The First Amendment text reads:

“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.”

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

Freedom of Speech

The First Amendment guarantees freedom of speech . Freedom of speech gives Americans the right to express themselves without having to worry about government interference. It’s the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm others—true incitement and/or threats—is also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

Freedom of the Press

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press . False or defamatory statements—called libel—aren’t protected under the First Amendment.

Freedom of Religion

The First Amendment, in guaranteeing freedom of religion , prohibits the government from establishing a “state” religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

Right to Assemble, Right to Petition

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

First Amendment Court Cases

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech &  Freedom of the Press :

Schenck v. United States , 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I .

The Schenck decision helped define limits of freedom of speech, creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistance as dangerous to national security.

New York Times Co. v. United States , 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman , Dwight D. Eisenhower , John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson , 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan .

The Supreme Court reversed a Texas court’s decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: “This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.”

Edwards v. South Carolina (1962): On March 2, 1961, 187 Black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly and freedom to petition of the students.

The Bill of Rights; White House . History of the First Amendment; The University of Tennessee, Knoxville. Schenck v. United States ; C-Span .

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Chapter 6: The Right to Freedom of Speech

The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.

Free speech is our most fundamental—and our most contested—right. It is an essential freedom because it is how we protect all of our other rights and liberties. If we could not speak openly about the policies and actions of government, then we would have no effective way to participate in the democratic process or protest when we believed governmental behavior threatened our security or our freedom. Although Americans agree that free speech is central to democratic government, we disagree sharply about what we mean by speech and about where the right begins and ends. Speech clearly includes words, but does it also include conduct or symbols? Certainly, we have the right to criticize the government, but can we also advocate its overthrow? Does the right to free speech allow us to incite hate or use foul language in public?

The framers of the Bill of Rights understood the importance of free expression and protected it under the First Amendment: “Congress shall make no law. . . abridging the freedom of speech.” Both English history and their own colonial past had taught them to value this right, but their definition of free speech was much more limited than ours. Less than a decade after the amendment’s ratification, Congress passed the Sedition Act of 1798, making it a crime to criticize the government. Many citizens believed government could forbid speech that threatened public order, as witnessed by numerous early nineteenth-century laws restricting speech against slavery. During the Civil War, thousands of antiwar protestors were arrested on the theory that the First Amendment did not protect disloyal speech. Labor unrest in the 1800s and 1890s brought similar restraints on the right of politically unpopular groups, such as socialists, to criticize government’s failure to protect working people from the ills of industrialization and economic depression.

Freedom of speech did not become a subject of important court cases until the twentieth century when the Supreme Court announced one of the most famous principles in constitutional law, the clear and present danger test. The test was straightforward: government could not restrict speech unless it posed a known, immediate threat to public safety. The standard sought to balance the need for order with the right to speak freely. At its heart was the question of proximity, or closeness, and degree. If speech brought about an action that was dangerous under the immediate circumstances, such as falsely yelling “fire” in a crowded theater, then it did not enjoy First Amendment protection. With this case, Schenck v. United States (1919), the Court began a decades-long process of seeking the right balance between free speech and public safety.

The balance, at first, was almost always on the side of order and security. Another case decided in 1919, Debs v. United States , illustrates how restrictive the test could be. Eugene Debs was a labor leader from Indiana who had run for President four times as the candidate of the Socialist Party of America, once polling more than one million votes. At a June 1918 rally in Chicago, while U.S. troops were fighting in World War I, he told the working-class crowd, “You need to know you are fit for something better than slavery and cannon fodder.”

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

He was sentenced under an existing federal statute to twenty years in prison for inciting disloyalty and obstruction of military recruitment, which the Supreme Court upheld.

For the next five decades, the Court wrestled with the right balance between speech and order. Much of what defined freedom of speech emerged from challenges to the government’s ability to regulate or punish political protest. Each case brought a new set of circumstances that allowed the justices an opportunity to modify or extend the clear and present danger test. Many decisions recognized the abstract right of individuals to speak freely, but each one hedged this right in important ways. Always in the background were conditions that pointed to disorder, dissension, and danger—the Great Depression, World War II, and the Cold War, among them—so the justices were cautious in expanding a right that would expose America to greater threats. These cases, however, gradually introduced a new perspective on the value of free speech in a democracy, namely, the belief that truth is best reached by the free trade in ideas.

The belief that society is best served by a marketplace of ideas open to all opinions, no matter how radical, ultimately prevailed. In 1927, the Court had endorsed what came to be called the bad tendency test: if officials believed speech was likely to lead to a bad result, such as urging people to commit a violent act, it was not protected under the First Amendment even if no violence occurred. By 1969, however, similar facts produced a different outcome. Ku Klux Klan members in Ohio invited a television station to film their rally. Waving firearms, they shouted racist and anti-Semitic slurs and threatened to march on Congress before their leader was arrested and later convicted under a state law banning speech that had a tendency to incite violence. The Supreme Court overturned his conviction in Brandenburg v. Ohio and established the rule still in effect today: the First Amendment protects the right to advocate the use of force or violence, but it does not safeguard speech likely to incite or produce an immediate unlawful act. The Brandenburg test has allowed Nazis to march, Klan members to hold rallies, and other extremist groups to promote views far outside the mainstream of public opinion. With few exceptions—fighting words and obscenity, for example—government today cannot regulate the content of speech.

Even as society was coming to accept a wide range of political ideas, opposition to an unpopular war raised other questions about the limits and forms of free speech. By the mid- to late 1960s, the Vietnam War divided Americans. Although many citizens supported the use of U.S. troops to stop communism in Asia, a growing minority, including many draft-age young people, took to the streets to oppose the war. The protestors did not limit their efforts to antiwar speeches; they also wore shirts with obscene slogans, burned draft cards, and desecrated American flags. Using these symbols to protest, they argued, was a form of free speech. Soon, the Supreme Court faced the question squarely in a case involving a youthful protestor from the nation’s heartland: is symbolic speech—messages using symbols or signs, not words—protected by the First Amendment?

The first large-scale American demonstration against the Vietnam War occurred in November 1965 when more than 25,000 protestors converged on the nation’s capital. Fifty Iowans made the long bus ride, and on the way home they decided to make their opposition known locally by wearing black armbands to work and school. One member of the peace contingent was Lorena Tinker, the wife of a Des Moines Methodist minister and mother of five children. Mary Beth Tinker, a thirteen-year-old eighth grader, followed her mother’s suggestion and became one of a handful of local public school students who wore this symbol of protest to school. This act placed her in the middle of a national controversy about student rights and freedom of expression.

In many ways, Mary Beth was a normal eighth grader. She was a good student who enjoyed singing, spending time with her friends, and taking part in church activities. What made her different was a commitment to social justice, a passion encouraged by her parents, both of whom were known for their activism. Her parents wanted their children to share their moral and social values, and Mary Beth responded eagerly to their invitation to participate with them. By the time she became a teenager, she already had attended her first protest, accompanying her father to a rally about fair housing.

Mary Beth Tinker, her brother, John, and a handful of Des Moines students planned their demonstration for December 16, 1965. The students’ aim was not to protest the war but to mourn its casualties, Vietnamese and American, and to show support for proposed peace talks. School officials, however, promised to suspend anyone who came to school wearing the armbands, and the school principal suspended Mary Beth and sent her home. She was one of five students suspended that day for wearing the offending cloth. Significantly, the school ban applied only to armbands, in other words, to students who opposed the Vietnam War; a number of students that day wore an array of other symbols, including the Iron Cross, a Nazi medal.

When the school board upheld the suspensions, the Tinkers persuaded the Iowa Civil Liberties Union to take the case to federal court. Two lower federal courts agreed with the school’s action, rebuffing the argument that the policy violated the First Amendment guarantee of free speech. The Supreme Court decided otherwise. In its 7-to-2 decision, announced in February 1969, the justices held that the wearing of armbands is a symbolic act akin to “pure speech” and protected by the right to free expression. The protesting students posed no threat to the order required for effective instruction, nor did the wearing of armbands interfere with the school’s educational mission. In this instance, the balance between order and liberty was weighted on the side of the First Amendment. Students and teachers, the Court concluded, do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Symbolic speech has been the focus of some of our greatest constitutional drama. Words may be powerful and provocative, but symbols are often more inflammatory because they are visual and evoke an emotional response. We live in an age when we use pictures and symbols to convey important messages, whether in politics or the marketplace. For these reasons, the Supreme Court’s recognition of symbolic speech as a right protected by the First Amendment has been a significant development. Twenty-five years after Mary Beth Tinker put on her armband in remembrance of the war dead, Life magazine featured a handful of civil liberties cases to celebrate the bicentennial of the Bill of Rights. Mary Beth’s case was included, even though the rights of students remained, and still are, more limited than those of adult citizens. But her actions as an eighth grader expanded our conception of constitutionally protected speech to include the symbols we use to express our convictions.

Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.

More than most other recent decisions, cases involving symbolic speech have revealed how contentious the right of free speech remains in our society. In 1989, the Supreme Court ruled that the First Amendment protected individuals who burned the American flag in protest. This decision was highly controversial, and it has resulted in numerous attempts to amend the Constitution to protect the flag and, in effect, limit speech in this circumstance. The outcome of this effort is uncertain, but the debate raises important questions: What role does this right play in our democracy? How does it contribute to our liberty as Americans?

The right to speak freely, without restraint, is essential to democratic government because it helps us develop better laws and policies through challenge, rebuttal, and debate. When we all have the ability to speak in the public forum, offensive opinions can be combated with an opposing argument, a more inclusive approach, a more effective idea. We tolerate offensive speech and protect the right to speak even for people who would deny it to us because we believe that exposing their thoughts and opinions to open debate will result in the discovery of truth. This principle is an old one in Western thought. U.S. Supreme Court Justice Oliver Wendell Holmes’s dissent in Abrams v. United States , a 1919 case suppressing free speech, is a classic statement of this view: “The best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [the public’s] wishes safely can be carried out.”

Governmental actions to deny differing points of view, even distasteful or unpopular opinions, rob us of the range of ideas that might serve the interests of society more effectively. In a case decided almost a decade before Tinker v. Des Moines , the Supreme Court found this rationale especially applicable to the classroom. “The Nation’s future,” the justices wrote, “depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues.” As a nation, we are willing to live with the often bitter conflict over ideas because we believe it will lead to truth and to improved lives for all citizens. We recognize that freedom of speech is the first freedom of democracy, as the English poet John Milton argued during his own seventeenth-century struggle to gain this right: “Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” The ability to speak freely allows us to pursue truth, to challenge falsehoods, to correct mistakes—all are necessary for a healthy society.

Free speech also reflects a commitment to individual freedom and autonomy, the right to decide for ourselves and to pursue our own destiny. Throughout our history, we have been so committed to individual choice that many foreign observers believe it is our most characteristic trait. We see it reflected daily in everything from advertising slogans—“Have It Your Way”— to fashion statements, but fail to recognize how closely freedom is tied to the right to speak freely. Free speech guarantees us an individual voice, no matter how far removed our opinions and beliefs are from mainstream society. With this voice we are free to contribute as individuals to the marketplace of ideas or a marketplace of goods, as well as to decide how and under what circumstances we will join with others to decide social and governmental policies.

A commitment to free speech, of course, will not resolve all conflict, not if our history is any guide. The debate is most contentious during times of war or other moments when national security is at stake. Even then—perhaps especially then—we will continue to fight over words and symbols because they express our deepest hopes and our most worrisome fears. This contest over what speech is acceptable and what is not has been a constant theme of our past. Rarely do these struggles produce a neat consensus. More often, intemperate rhetoric and bitter division have been their legacy, and this angry clamor is one of the basic noises of our history. What makes the struggle to protect free speech worthwhile is its ability to serve as a lever for change. When we practice our right to speak openly, we are defining the contours of our democracy. It is messy work, but through it, we keep the Constitution alive and, with it, our dreams of a just society.

“Free Trade in Ideas”

Jacob Abrams was a Russian immigrant and anarchist convicted of violating the Sedition Act of 1918, which made it a crime to advocate anything that would impede the war effort during World War I. In 1917 Justice Oliver Wendell Holmes, Jr., had written the Court’s opinion in Schenck v. United States , upholding similar convictions because Congress had a right to regulate speech that posed a “clear and present danger” to public safety. But by the time Abrams’s appeal reached the Court in 1919, Holmes had modified his views. Disturbed by anti-radical hysteria, he dissented from the majority’s decision upholding Abrams’s conviction in Abrams v. United States . His eloquent discussion of the connection between freedom of speech and the search for truth soon became the standard used by the Supreme Court to judge free speech cases until Brandenberg v. Ohio in 1972. The First Amendment, Holmes reasoned, protected the expression of all opinions “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so . . .

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country . . . Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law abridging the freedom of speech.” Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

“Malicious Words” versus “Free Communication”

In response to fears about imminent wars with France in 1798, the Federalist-controlled Congress passed a series of four acts known collectively as the Alien and Sedition Acts. Section 2 of the Sedition Act made it a crime to make defamatory statements about the government or President. (Sedition is an action inciting resistance to lawful authority and tending to lead to the overthrow of the government.) The act was designed to suppress political opposition. Its passage by Congress reveals how limited the definition of the right of free speech was for some Americans only a few years after the ratification of the First Amendment.

Sec. 2 . . . That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United Sates, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

James Madison, congressman from Virginia, and Thomas Jefferson, the sitting Vice President, secretly drafted resolutions protesting the Sedition Act as unconstitutional. The Virginia and Kentucky legislatures passed these resolutions in 1798. Both resolutions especially pointed to the act’s violation of First Amendment protections, as seen in the Virginia Resolution here.

Resolved, . . . That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the “Alien and Sedition Acts” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

That this state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, “the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution; it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.

The Sedition Act expired in 1801 but not until a number of the Federalists’ opponents, including Congressman Matthew Lyon of Vermont, had been convicted of violating the law. Today, historians consider the Sedition Act to have been a gross misuse of government power. In 1798, the Kentucky Resolutions focused on the rights of states to determine the limits of free speech.

Resolved, that it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;” and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed.

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Student Opinion

Why Is Freedom of Speech an Important Right? When, if Ever, Can It Be Limited?

By Michael Gonchar

• Sept. 12, 2018

This extended Student Opinion question and a related lesson plan were created in partnership with the National Constitution Center in advance of Constitution Day on Sept. 17. For information about a cross-classroom “Constitutional Exchange,” see The Lauder Project .

One of the founding principles of the United States that Americans cherish is the right to freedom of speech. Enshrined in the First Amendment to the Constitution, freedom of speech grants all Americans the liberty to criticize the government and speak their minds without fear of being censored or persecuted.

Even though the concept of freedom of speech on its face seems quite simple, in reality there are complex lines that can be drawn around what kinds of speech are protected and in what setting.

The Supreme Court declared in the case Schenck v. United States in 1919 that individuals are not entitled to speech that presents a “clear and present danger” to society. For example, a person cannot falsely yell “fire” in a crowded theater because that speech doesn’t contribute to the range of ideas being discussed in society, yet the risk of someone getting injured is high. On the other hand, in Brandenburg v. Ohio in 1969, the court declared that even inflammatory speech, such as racist language by a leader of the Ku Klux Klan, should generally be protected unless it is likely to cause imminent violence.

While the text and principle of the First Amendment have stayed the same, the court’s interpretation has indeed changed over time . Judges, lawmakers and scholars continue to struggle with balancing strong speech protections with the necessity of maintaining a peaceful society.

What do you think? Why is the freedom of speech an important right? Why might it be important to protect even unpopular or hurtful speech? And yet, when might the government draw reasonable limits on speech, and why?

Before answering this question, read the full text of the amendment. What does it say about speech?

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.

Next, read these excerpts from three recent articles about free speech cases that might affect your life:

In a September 2017 article, “ High Schools Threaten to Punish Students Who Kneel During Anthem ,” Christine Hauser writes:

The controversy over kneeling in protest of racial injustice moved beyond the world of professional sports this week, when a number of schools told students they were expected to stand during the national anthem. On Long Island, the Diocese of Rockville Centre, which runs a private Catholic school system, said students at its three high schools could face “serious disciplinary action” if they knelt during the anthem before sporting events.

In a June 2018 article, “ Colleges Grapple With Where — or Whether — to Draw the Line on Free Speech ,” Alina Tugend writes:

It has happened across the country, at small private colleges and large public universities: an invited guest is heckled or shouted down or disinvited because of opposing political views. And the incident is followed by a competing chorus of accusations about the rights of free speech versus the need to feel safe and welcome. It’s something those in higher education have grappled with for decades. But after the 2016 presidential election and the increasing polarization of the country, the issue has taken on a new resonance.

In another June 2018 article, “ Supreme Court Strikes Down Law Barring Political Apparel at Polling Places ,” Adam Liptak writes:

The Supreme Court on Thursday struck down a Minnesota law that prohibits voters from wearing T-shirts, hats and buttons expressing political views at polling places. In a cautious 7-to-2 decision, the court acknowledged the value of decorum and solemn deliberation as voters prepare to cast their ballots. But Chief Justice John G. Roberts Jr. wrote that Minnesota’s law was not “capable of reasoned application.”

Students, read at least one of the above articles in its entirety, then tell us:

— Why is the freedom of speech an important right? Why do you think it’s worth protecting?

— What is the value in protecting unpopular speech?

— The Supreme Court has determined that certain types of speech, such as fighting words, violent threats and misleading advertising, are of only “low” First Amendment value because they don’t contribute to a public discussion of ideas, and are therefore not protected. Even though the text of the First Amendment does not make any distinction between “low” and “high” value speech, do you think the court is correct in ruling that some categories of speech are not worth protecting? What types of speech would you consider to be “low” value? What types of speech are “high” value, in your opinion?

— What do you think about the free speech issues raised in the three articles above? For example:

• Should students be allowed to kneel during the national anthem? Why? • Should colleges be allowed to forbid controversial or “offensive” guests from speaking on campus? Why? • Should individuals be able to wear overtly political T-shirts or hats to the polling booth? Why?

— When might the government draw reasonable limits to the freedom of speech, and why?

— We now want to ask you an important constitutional question: When does the First Amendment allow the government to limit speech? We want to hear what you think. But to clarify, we’re not asking for your opinion about policy. In other words, we’re not asking whether a certain type of speech, like flag burning or hate speech, should be protected or prohibited. Instead, we’re asking you to interpret the Constitution: Does the First Amendment protect that speech?

Do your best to base your interpretation on the text of the amendment itself and your knowledge of how it can be understood. You may want to consult this essay in the National Constitution Center’s Interactive Constitution to learn more about how scholars and judges have interpreted the First Amendment, but rest assured, you don’t have to be a Supreme Court justice to have an opinion on this matter, and even the justices themselves often disagree.

— When you interpret the First Amendment, what do you think it has to say about the free speech issues raised in the three articles. For example:

• Does the First Amendment protect the right of students at government-run schools (public schools) to protest? What about students who attend private schools? • Does the First Amendment allow private colleges to prohibit certain controversial speakers? What about government-run colleges (public colleges)? • Finally, does the First Amendment protect voters’ right to wear whatever they want to the polling booth?

Are any of your answers different from your answers above, when you answered the three “should” questions?

— When scholars, judges and lawmakers try to balance strong speech protections with the goal of maintaining a peaceful society, what ideas or principles do you think are most important for them to keep in mind? Explain.

Students 13 and older are invited to comment. All comments are moderated by the Learning Network staff, but please keep in mind that once your comment is accepted, it will be made public.

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What is freedom of speech?

'Freedom of speech is the right to seek, receive and impart information and ideas of all kinds, by any means.'

Is freedom of speech a human right?

In the UK, Article 10 of the 1998 Human Rights Act protects our right to freedom of expression:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Are freedom of speech and freedom of expression the same thing? In the UK, freedom of speech is legally one part of the wider concept of freedom of expression.

Does freedom of speech have limits?

...and when it can't.

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ARTICLE CONTENTS

Natural rights and the first amendment.

abstract . The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

author. Assistant Professor, University of Richmond School of Law. The author thanks Randy Barnett, Will Baude, Nathan Chapman, Saul Cornell, Jonathan Gienapp, Masha Hansford, Pam Karlan, Larry Kramer, Corinna Lain, Kurt Lash, Maeva Marcus, Michael McConnell, Bernie Meyler, Zach Price, Jack Rakove, Richard Re, Fred Schauer, Sid Shapiro, Larry Solum, Andrew Verstein, Kevin Walsh, the editors of the Yale Law Journal , and participants in the Federalist Society Junior Scholars Colloquium, the Georgetown Constitutional Law Colloquium, the Institute for Constitutional History Junior Scholars Seminar, the Loyola University Chicago Constitutional Law Colloquium, the Stanford Law School faculty workshop, the University of Richmond School of Law faculty workshop, the University of San Diego Originalism Works-in-Progress Conference, and the Wake Forest University School of Law faculty workshop.

Introduction

Governments need to restrict expression . Whether someone is falsely yelling “fire” in a crowded theater, lying on the witness stand, or conspiring to commit crimes, speech can be tremendously harmful . Yet communication is essential to human flourishing, and history has shown time and again that governments are prone to censorial abuse. An enduring challenge for any legal system is balancing these concerns .

In its role as constitutional mythologist, the Supreme Court often says that the First Amendment answers this challenge. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs,” the Court recently declared, concluding that neither politicians nor judges may “attempt to revise that judgment simply on the basis that some speech is not worth it.” 1

After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy . “One can keep going round and round on the original meaning of the First Amendment,” Rodney Smolla writes, “but no clear, consistent vision of what the framers meant by freedom of speech will ever emerge.” 2 Conventional wisdom holds that the freedom of speech and the freedom of the press were equivalent concepts, together comprising what we would now call a freedom of expression. 3 But another prominent view is that the freedom of speech, unlike the freedom of the press, emerged from the legislative privilege of speech and debate, 4 thus providing robust protection for political speech. 5 Still more scholars conclude that “freedom of speech, unlike freedom of the press, had little history as an independent concept when the first amendment was framed.” 6 And while some scholars espouse “little doubt that the First Amendment was meant . . . to forbid punishment for seditious libel,” 7 debates among the Founders on that topic would seem to belie any broadly shared original understanding of speech and press freedoms. 8 No wonder so many commentators have given up the search for original meaning, with some concluding that the First Amendment was simply “an aspiration, to be given meaning over time.” 9

But perhaps this indeterminacy stems from our own interpretive approach. “[T] he first key to understanding the American Founding ,” historian Jonathan Gienapp cautions, “ is appreciating that it is a foreign world , ” filled with many concepts that bear only a deceptive resemblance to modern ideas. 10 Perhaps , then, we have been looking for original meaning in the wrong way, instinctively trying to fit the historical evidence to our own conception of constitutional rights.

Modern lawyers tend to view constitutional phrases like “the freedom of speech” as terms of art, sparking searches for those terms in eighteenth-century legal sources. In the context of speech freedom, that effort produces sparse and inconsistent results. Americans, it turns out, rarely ever used the term “freedom of speech.” Meanwhile, the Founders frequently mentioned press freedom, but they did so in seemingly conflicting ways. The liberty of the press, William Blackstone famously insisted, “consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” 11 Founding Era commentaries about press freedom, however, routinely ventured beyond the topic of press licensing. 12

Proposing a paradigm shift, this Article argues that Founding Era elites shared certain understandings of speech and press freedoms at a more abstract, conceptual level even though they disagreed about how to apply those concepts to particular constitutional controversies. The contested implications of speech and press freedoms at the Founding, in other words, have obscured their more widely shared meanings . To comprehend these meanings, however, we must step back from the nitty-gritty details of legal doctrine and grapple with the conceptual foundations of the First Amendment, starting with the largely forgotten language of Founding Era rights discourse. 13

For American elites, rights were divided between natural rights , which were liberties that people could exercise without governmental intervention, and positive rights , which were legal privileges or immunities defined in terms of governmental action or inaction, like the rights of due process, habeas corpus, and confrontation. 14 Consequently, distinguishing natural rights from positive rights was simple. “A natural right is an animal right,” Thomas Paine succinctly explained, “and the power to act it, is supposed, either fully or in part, to be mechanically contained within ourselves as individuals.” 15 Natural rights, in other words, were those that did not depend on the existence of a government. Speaking, writing, and publishing were thus readily identifiable as natural rights.

Though easy to identify, natural rights at the Founding scarcely resembled our modern notion of rights as determinate legal constraints on governmental authority. Rather, Americans typically viewed natural rights as aspects of natural liberty that governments should help protect against private interference (through tort law, property law, and so forth) and that governments themselves could restrain only to promote the public good and only so long as the people or their representatives consented. 16 And assessing the public good—generally understood as the welfare of the entire society—was almost entirely a legislative task, leaving very little room for judicial involvement. 17 Natural rights thus powerfully shaped the way that the Founders thought about the purposes and structure of government, but they were not legal “trumps” in the way that we often talk about rights today.

By the late eighteenth century, however, expressive freedom also connoted a variety of more determinate legal protections. The liberty of the press, for instance, often referred specifically to the rule against press licensing ; by prohibiting prior restraints on the press, this rule put juries in charge of administering governmental restrictions of expression through criminal trials. Meanwhile, the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from regulation. In this limited way, expressive freedom entailed legal “trumps.” Much of our modern confusion about the history of speech and press freedoms stems from the way that the Founders—immersed in their own constitutional language—silently shifted between these two dimensions of expressive freedom .

Indeed, Founding Era rights discourse featured a symbiotic relationship between natural rights and legal rules. 18 In part, the common law indicated the scope of natural rights both because of a presumed harmony between the common law and natural law and because common-law rules were presumptively based on popular consent and consistent with the public good. At the same time, the Founders sometimes used natural law—the law of reason—to help shape their understandings of positive law. To recognize a natural right, in other words, implied recognition of its customary legal protections, and vice versa. 19

The Founders, however, often disagreed about the precise relationship between natural rights and the common law, leading to a confusing array of statements about expressive freedom. In general, Federalists based their views about natural rights on legal authority, not practical experience or abstract reasoning, making judicial accounts of the common law decisive. But an opposing interpretive tradition championed “popular” understandings of constitutional and legal commands. 20 Advocates of this view, Saul Cornell explains, were “deeply suspicious of ceding so much authority to lawyers and judges,” sometimes even going so far as to compare “the chicanery of lawyers with the practices of ‘Romish priests in matters of religion.’” 21 For these “popular” interpreters, who were often themselves erudite elites, practical experience and common sense were paramount.

Because of these methodological disagreements, Americans who shared an understanding of speech and press freedoms as natural rights often profoundly disagreed about the legal implications of the First Amendment. Federalists in the late 1790s, for instance, typically invoked the English common law to defend the constitutionality of sedition prosecutions, while many Republicans appealed to practical experience and common sense to reach the opposite conclusion. Yet this virulent disagreement among contending elites began with a shared recognition of expressive freedom as a natural right. This Article’s reframing thus illustrates that identifying methodological differences among the Founders can help clarify, and not merely complicate, 22 the historical meanings of constitutional concepts.

Debates about expressive freedom also were wide ranging because the Founders often vehemently disagreed about which regulations of speech promoted the public good. Many viewed narrowly drawn sedition laws as enhancing public debate by combating efforts to mislead the public. 23 Others thought that sedition laws created more harm than good by chilling too much useful speech. 24 But properly understood, this conflict did not reflect profound divisions about the concept of expressive freedom. Rather, the Founders disagreed about how to apply that concept to sedition laws. 25

To set the stage for this historical argument, Part I discusses the Article’s historical contribution and previews its potential modern implications. It begins by offering a brief overview of related scholarship. This overview sets in relief the Article’s focus on the interplay between natural rights and the common law. The Part then explores the ways that this revisionist account could influence modern understandings of the First Amendment. In particular, it emphasizes that the Speech and Press Clauses were originally rooted in a broader Founding Era discourse about natural rights—not, as modern scholarship generally posits, a particular theory about why expression warrants constitutional protection.

Part II then turns to the history, drawing out three different meanings of speech and press freedoms at the Founding. First, speech and press freedoms were natural rights that were regulable in promotion of the public good, meaning the good of the society as a whole. 26 Second, the Founders widely thought that the freedom to make well-intentioned statements of one’s views belonged to a subset of natural rights, known as “unalienable” natural rights, that could not be restricted in promotion of the public good and thus fell outside legislative authority to curtail. 27 Third , Americans recognized a variety of common-law rules that offered more determinate legal protection for expressive freedom. 28 A concluding Section then explores the contested interrelationship between these concepts. 29

Part II, it bears emphasis, aims to recover the principles that Founding Era elites had in mind when designing and applying the Speech and Press Clauses, but it is not directly concerned with the original meanings of those provisions. Postponing that discussion until Part III is deliberate. Indeed, this Article defends the view that we cannot understand the meaning of the First Amendment until we first understand the forgotten language in which it was written.

With this conceptual framework in mind, Part III offers a novel interpretation of the original meanings of the Speech and Press Clauses. The argument proceeds by connecting the text and early interpretations of the First Amendment to the framework developed in Part II. Throughout the ratification debates and into the First Congress, supporters of a bill of rights pushed for constitutional recognition of existing concepts. Therefore, to the extent that Founding Era elites originally understood the First Amendment as imposing determinate limits on congressional power, these limits were delineated by accepted common-law rules and by the inalienable natural right to make well-intentioned statements of one’s thoughts. Beyond these principles, however, the First Amendment left unresolved whether certain restrictions of expression promoted the public good. In laying out this argument, this Part also rebuts competing scholarly accounts of the original meanings of the Speech and Press Clauses and emphasizes the ways in which these Clauses had distinct meanings.

The Article then concludes by returning to the modern implications of First Amendment history. A point of emphasis is the historical distance that separates us from our constitutional past. If the Supreme Court wanted to apply only those legal rules that the Founders recognized (or likely would have recognized), a huge swath of modern case law would have to go. There is no evidence, for instance, that the Founders denied legislative authority to regulate expressive conduct in promotion of the public good—a principle that runs contrary to countless modern decisions.

But beyond case-specific implications is a more fundamental point: the early history of speech and press freedoms undercuts the mythological view that foundational principles of modern doctrine inhere in the original Speech Clause. The Justices, for instance, have repeatedly asserted that the First Amendment itself strictly disfavors content-based regulations of speech. 30 And when the Court recently derided the government’s suggestion that some speech might be deemed “low value” and thus subject to less rigorous scrutiny, it acted as if the Speech Clause contains a full set of doctrinal rules. 31 Lowering judicial scrutiny for less valuable forms of speech, the Court explained, would “revise th[e] judgment” that “[t]he First Amendment itself reflects.” 32 Doubling down on this idea, the Court later insisted that “[t]he whole point of the First Amendment” was to prevent speech restrictions based on “a generalized conception of the public good.” 33

Simply put, however, the First Amendment did not enshrine a judgment that the costs of restricting expression outweigh the benefits. At most, it recognized only a few established rules, leaving broad latitude for the people and their representatives to determine which regulations of expression would promote the public good. Whether modern doctrine serves those original principles is then a judgment that we must make. The original meanings of the Speech and Press Clauses do not provide the answer.

I. stakes and implications

Before turning to the eighteenth century, it is worth making some preliminary remarks about this Article’s contribution to historical scholarship and its implications for modern doctrine.

A. Scholarly Contribution

This Article charts a new historical path by concentrating on the conceptual meanings , and not merely the legal dimensions, of speech and press freedoms. For much of the twentieth century, scholarship about expressive freedom at the Founding overwhelmingly focused on the compatibility of sedition prosecutions with the First Amendment. 34 While historically enlightening, much of this scholarship offered little clarity about the First Amendment’s original meaning beyond the topic of sedition. Some historians and legal academics have pursued that effort more directly, but the literature falls far short of consensus. Scholars typically treat speech and press freedoms as common-law rules, leading many to emphasize the ban on prior restraints. 35 Others, relying both on Federalist claims during the ratification debates and on Republican arguments against the Sedition Act, insist that the Speech and Press Clauses categorically withdrew all federal authority over expression. 36 Still more assert that the Speech Clause was linguistically and substantively derived from the legislative privilege of speech and debate. 37 Finally, many have simply thrown up their hands and declared the enterprise to be hopeless or misguided. 38

A few scholars have identified a connection between the First Amendment and natural rights, but none has accounted for the multifaceted way that the Founders referred to speech and press freedoms. Philip Hamburger, for instance, classifies both freedoms as natural rights, emphasizing governmental authority to prevent encroachment on the rights of others. 39 Yet Hamburger never grapples with the complex relationship between natural rights and customary legal rules—an issue that profoundly shaped Founding Era disputes about expressive freedom. 40 Meanwhile, others who describe speech and press freedoms as natural rights typically view the First Amendment as a categorical ban on any federal restrictions of expression. 41

This Article, by contrast, presents an understanding of Founding Era expressive freedom grounded on the interrelationship between common-law traditions and natural-rights principles. As a general matter, natural rights did not impose fixed limitations on governmental authority. Rather, Founding Era constitutionalism allowed for restrictions of natural liberty to promote the public good—generally defined as the good of the society as a whole. 42 Recognition of natural rights, in other words, simply set the terms of political debate, not the outcomes. In this sense, speech and press freedoms were expansive in scope—applying to all forms of expression—but weak in their legal effect. And no evidence indicates that the First Amendment empowered judges to determine whether particular restrictions of speech promoted the general welfare. 43 (Although perhaps strange to modern readers, this interpretation of the First Amendment—generally permitting the government to restrict speech in the public interest—survived into the early twentieth century. 44 )

Nonetheless, the Founders also accepted that speech and press freedoms denied the government narrower slices of regulatory power. Everyone agreed, for instance, that the liberty of the press encompassed at least the common-law rule against press licensing. Americans also prized the right to a general verdict in sedition trials—enabling juries to decide questions of law and fact—and the right to present truth as a defense. Based largely on natural-rights principles, the Founders further rejected governmental authority to punish well-intentioned statements of one’s thoughts absent direct injury to others. 45 But this principle did not extend to speech designed to mislead or harm others, nor is there evidence that it offered protection for what we now call “expressive conduct.” 46 In these limited ways, speech and press freedoms were narrow in scope but strong in their legal implications. And the legal dimensions of expressive freedom reveal how the Founders sometimes treated speech and press freedoms as distinct, with press freedom encompassing only the legal rights of printing-press operators.

The claims made in the previous two paragraphs—developed further in Part II—simply describe a historical system of thought that Founding Era elites widely embraced. This Article does not attempt the impossible task of uncovering how every American actually thought about expressive freedom. Consequently, the discussion of “original meaning” in Part III aims to recover how Founding Era elites understood (where we have direct evidence), or would likely have understood (where we lack direct evidence), the Speech and Press Clauses of the First Amendment. 47 But this Article has little to say about the views of Americans who were unfamiliar with the underlying principles of social-contract theory. 48

The interpretive relevance of my historical claims is therefore contingent. Scholars using some other methodology might propose an alternative understanding of the First Amendment as the correct meaning at the time of the Founding. 49 This Article cannot contest that claim because, as historical scholarship, it does not take any position on what made a constitutional interpretation “correct . ” 50 Rather, it argues that Founding Era elites widely embraced a particular system of thought and that this system of thought undergirded how those elites wrote and originally understood the First Amendment.

B. Implications for Modern Doctrine

Shifting from the perspective of a historian to that of a modern constitutional interpreter, however, it might be reasonable to assume that elite views suffice to show what now counts as an “original meaning.” After all, the historical evidence that scholars and judges routinely use in modern constitutional interpretation consistently reflects the perspectives of elites. 51

So what relevance does this history have today? Most judges and constitutional scholars think that Founding Era evidence does and should matter when interpreting the Constitution . 52 On this assumption, accounting for the original meanings of speech and press freedoms would have profound consequences for First Amendment theory and doctrine.

In terms of its consequences for theory, history undermines the notion that the First Amendment itself embraces a particular rationale for protecting expression. Such theories dominate modern debates. 53 The meaning and scope of the First Amendment, scholars usually posit, depend on why the Constitution singles out speech and press freedoms. 54 Some theories emphasize republican government, 55 others the marketplace of ideas, 56 and still more the autonomy of individuals. 57

Viewed historically, however, the First Amendment did not enshrine a particular rationale for expressive freedom. To be sure, the men who drafted and ratified the First Amendment had various reasons for why they valued expression. 58 And when it came time to apply the Speech and Press Clauses, various theories of expressive freedom could inform an assessment of the public good. But these theories were not themselves baked into the First Amendment.

Recovering the history of expressive freedom also has potentially dramatic consequences for legal doctrine. Worth highlighting, yet again, is the “utter differentness and discontinuity of the past.” 59 Indeed, modern speech doctrine, which emerged in the twentieth century, bears almost no resemblance to eighteenth-century judicial decisions. 60 And the Founders certainly did not envision courts crafting legal rules to prohibit speech-suppressing legislation that judges viewed as contrary to the public good. 61 In that sense, modern doctrine is fundamentally inconsistent with Founding Era law.

For originalists with a narrow conception of the judicial role, 62 this variance either calls for a radical dismantling of speech doctrine, or it requires a concession that precedent has displaced original meaning. 63 A huge swath of modern case law, after all, falls outside of the First Amendment’s original legal ambit, including its ban on prior restraints and its protection for well-intentioned statements of one’s thoughts. If an originalist wanted First Amendment doctrine to track Founding Era judicial reasoning, the Supreme Court’s decisions in Texas v. Johnson , 64 Boy Scouts of America v. Dale , 65 Citizens United v. FEC , 66 and Snyder v. Phelps , 67 among many, many others, would likely have to go. 68

But other originalists argue that judges are empowered, or even duty-bound, to give concrete meaning to underdeterminate constitutional provisions. 69 If one accepts this view, then modern law might still comport with original meaning. For instance, a natural-rights reading of the First Amendment would require the government to act for reasons that promote the public good, and modern doctrine can perhaps be understood, or justified, as prophylactic rules that help ferret out illicit motives. 70 To be sure, these judicial efforts bear little resemblance to anything that the Founders themselves would have endorsed. But they can still be seen as a way of implementing the original concepts of speech and press freedoms using modern doctrinal tools. 71 And it is to those historical concepts that we now turn.

II. natural rights at the founding

When James Madison proposed constitutional amendments in 1789, he noted that his draft included “ natural rights , retained—as Speech, Con[science] . ” 72 Indeed, eighteenth-century writers often identified speech as “a natural Right, which must have been reserved, when Men gave up their natural Rights for the Benefit of Society.” 73 But what were natural rights?

Section II.A explores the general eighteenth-century meaning of natural rights. In short, natural rights shaped how the Founders thought about the structure and purposes of government—ensuring that the government could restrain natural liberty only to promote the public good and only with the consent of the people. But these “rights” (including the natural right of speaking, writing, and publishing) generally were not determinate legal privileges or immunities.

Since natural rights were subject to governmental regulation, we might wonder why the Founders bothered amending the Constitution to include any of them. 74 Indeed, some Federalists made exactly this argument when opposing an enumeration of rights. The purpose of declaring rights, John Jay explained, was to establish that “certain enumerated rights belonged to the people, and were not comprehended in the royal prerogative.” 75 Under a republican government, however, all legislative power was exercised by elected representatives , thus obviating any need to enumerate natural rights. 76 Though puzzling today, Jay’s argument had considerable merit. Moreover, even among those who advocated for enumerating rights, many thought that declarations were hortatory, serving as a reminder, both to the people and to their government, of the reasons for instituting government and of the terms of the social contract and constitution . 77

Nonetheless, as Sections II.B and II.C demonstrate, the Founders often referred to certain rights, including speech and press freedoms, in a more legalistic way. Enumerated constitutional rights were “exceptions” to legislative authority, James Madison explained to Caleb Wallace in 1785. 78 This would have been quite a strange comment if Madison were alluding to liberty that could be regulated to promote the public good. Others called for a bill of rights so that a “Check will be placed on the Exercise of . . . the powers granted.” 79 Indeed, Thomas Jefferson claimed that enumerating rights would put a “legal check . . . into the hands of the judiciary,” 80 even though American elites broadly agreed that judges had no business resolving cases based on judicial assessments of the general welfare. 81

In fact, speech and press freedoms had assumed greater determinacy in two respects. First, as explained in Section II.B, the Founders recognized an inalienable natural right to express one’s thoughts, sometimes described as the “freedom of opinion.” Second, as shown in Section II.C, American elites widely embraced an assortment of common-law rules, including a ban on press licensing, that offered more determinate legal protections for expressive freedom. 82 In this way, speech and press freedoms were legally distinct, with the latter referring only to the customary legal rules that protected printing-press operators. Finally, Section II.D concludes with a discussion of the contested relationship between natural rights, inalienable natural rights, and the common law.

A. Natural Rights and Expressive Freedom

The intellectual foundation of Founding Era constitutionalism was social-contract theory. 83 Essentially, the theory was a thought experiment designed to reveal the proper scope and distribution of political authority. It began by positing a world without government , commonly known as a “state of nature,” in which individuals had only “natural rights.” The theory then explored why people in this condition would choose to organize politically. 84

Natural rights were any capacities that humans could rightly exercise on their own, without a government. (Positive rights, by contrast, were defined in terms of governmental action or inaction.) Consequently, natural rights encompassed nearly all human activities, sometimes summarized as a right to liberty or a “right to act . ” 85 More typically , however, natural-rights rhetoric developed around particular controversies. The natural rights to conscience and self-defense were part of the eighteenth-century lexicon, for instance, while other aspects of natural liberty , like eating and sleeping, were largely unmentioned. 86

Without recognizing this broader natural-rights discourse, scholars often view the freedom of speech as a term of art that originated with the legislative privilege of speech and debate, 87 or they conclude that “freedom of speech . . . had little history as an independent concept when the first amendment was framed.” 88 For the Founders, however, mentioning a “freedom to do something” naturally alluded to natural rights, without any need for further clarification or consistent terminology. 89

Not surprisingly, then, the Founders invoked the natural right of expressive freedom in all sorts of ways. References to the freedom of speaking, writing, and publishing seem to have been the most common, 90 probably because that phrasing appeared in the Pennsylvania Constitution of 1776 and the Vermont Constitution of 1777. 91 In the committee that revised Madison’s proposed Bill of Rights, for instance, one draft mentioned “certain natural rights which [we] retained,” including the right “of [s]peaking, writing and publishing . . . with decency and freedom.” 92 B ut in the course of discussing natural rights, contemporaries also mentioned the “right to speak,” 93 “[t]he right of publication,” 94 “the natural right of free utterance ,” 95 the “liberty of discussion,” 96 “the liberty of the tongue,” 97 the “exercise of . . . communication,” 98 and so forth.

Eighteenth -century commentators sometimes referred to “the liberty of the press” as a natural right, too. 99 “Printing,” after all, was “a more extensive and improved Kind of Speech.” 100 Some Founders distinguished the freedom of publishing , as a natural right, from the freedom of the press , as a common-law rule against press licensing. 101 ( In eighteenth-century English, “ t he press” was a reference to printing; the term did not refer to journalists until the nineteenth century. 102 ) But the use of this terminology was fluid, and Founding Era discussions of press freedom often alluded to natural-rights concepts. 103 Some writers even equated “the Liberty of the Press” with “the Liberty of publishing our Thoughts in any Manner, whether by Speaking, Writing or Printing,” thus treating speech and press freedoms as synonymous. 104

Recognizing that expressive freedom was a natural right, however, is just the beginning. We also need to consider what that classification meant in terms of limits on governmental power. And that issue turned on two inquires: first , the scope of pre-political natural liberty, and, second , the extent to which individuals surrendered control of that liberty upon entering into a political society. As we will see, the Founders defined pre-political natural rights in two distinct ways, but this difference ended up being of little practical significance because of a comparable divergence over how much natural liberty individuals surrendered when leaving the state of nature.

In terms of the scope of natural rights, the Founders universally accepted that pre-political natural liberty was circumscribed by natural law. 105 At a minimum, natural law required that individuals not interfere with the natural rights of others. 106 There was no natural right to assault others, for instance, because assault interfered with the natural right of personal security. Viewed in this way, natural rights could be roughly understood as human liberty to act unless those acts directly harmed others.

But some Americans, informed by David Hume’s view that humans are inherently sociable, 107 defined natural law in terms of social obligations, too. “Man, as a being, sociable by the laws of his nature,” Vermont jurist Nathaniel Chipman observed, “has no right to pursue his own interest, or happiness, to the exclusion of that of his fellow men.” 108 James Wilson echoed this theme in his law lectures, explaining that natural law requires individuals to avoid injury, selfishness, and injustice. 109 Thus, Wilson explained, every person can act “for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labo u rs . This right is natural liberty.” 110

At the next stage of social-contract theory, the Founders imagined that individuals—recognizing the deficiencies of a state of nature —would unanimously agree to form a political societ y (or body politic ) under a social contract (or social compact ) . 111 “The body-politic is formed by a voluntary association of individuals,” the Massachusetts Constitution of 1780 characteristically declared, and “is a social compact , by which the whole people covenants with each citizen , and each citizen with the whole people , that all shall be governed by certain laws for the common good.” 112 Creation of a body politic, the Founders imagined, then set the stage for another pact , the constitution , in which the people vest ed power in a government by majority consent. 113

Elites widely agreed about the essence of the social contract—namely, that the political society should protect natural liberty and should limit freedom only to promote the public good. 114 And the Founders generally understood this concept of the public good in an aggregate, collective sense, embracing the “safety and happiness of society,” as Madison put it. 115 (A slew of interchangeable terms referred to the same idea, including “collective interest,” “common good,” “general utility,” “general welfare,” “public interest,” and so forth. 116 ) In the end, this framework prioritized the interests of the whole society over narrower private interests. The common good, the Founders repeatedly implored, often required individual sacrifices. 117 At the same time, however, “respect for the public interest meant that lawmakers had to consider everyone’s interests, and not merely those of particular individuals or factions.” 118

But while largely in agreement on substance, the Founders spoke in a confusing assortment of ways about the retention of natural rights. The most common phrasing was, as William Blackstone put it, that “every man, when he enters into society, gives up a part of his natural liberty.” 119 Meanwhile, others talked about it being “necessary to give up [natural] liberty” entirely , 120 or at least necessary to “surrender[] the power of controuling . . . natural alienable rights.” 121 Still more insisted that in forming a republic, “the people surrender nothing .” 122

This dizzying array of statements—that individuals retained some, all, or none of their natural liberty—has created an extraordinary amount of confusion among scholars. 123 And it would seem to indicate substantial differences of opinion among the Founders about the scope of their natural rights. In truth, however, the disagreement was semantic, not substantive, because competing views about the terms of the social contract mirrored the competing views about the scope of pre-political natural rights.

For those who viewed natural rights as inherently circumscribed by a concern for the general welfare, individuals could retain all of their natural liberty without creating any conflict with “the due exercise of the powers of government, for the common good.” 124 In 1816, for instance, Thomas Jefferson wrote that “ the idea is quite unfounded, that on entering into society we give up any natural right .” 125 But Jefferson clarified that these natural rights were limited not only by a prohibition on “commit[ing] aggression on the equal rights of another” but also by “the natural duty of contributing to the necessities of the society.” 126 Consequently, by incorporating social duties into natural law, no conflict arose between the preservation of natural rights and the exercise of governmental powers to promote the public good. 127 “To give up the performance of any action, which is forbidden by the laws of moral and social nature,” Nathaniel Chipman insisted, “cannot be deemed a sacrifice.” 128

This is not to say that natural rights were identically defined after the formation of a political society. Some natural rights, Chipman explained, “to render them universally reciprocal in society, may be subjected to certain modifications .” 129 Yet, these rights, he insisted, “can never justly be abridged ,” meaning they could not “suffer any dim[i]nution.” 130 This refrain was especially familiar with respect to property rights. Many people “consider property as a natural right,” James Wilson noted, but one that “may be extended or modified by positive institutions.” 131 Accordingly, as Wilson explained:

[B]y the municipal law, some things may be prohibited, which are not prohibited by the law of nature: but . . . every citizen will gain more liberty than he can lose by these prohibitions . . . . Upon the whole, therefore, man’s natural liberty, instead of being abridged , may be increased and secured in a government, which is good and wise. 132

A natural right that could not be modified , by contrast, was an aspect of natural liberty over which the government simply had no authority. 133

For those who thought that individuals gave up some of their natural liberty in a social contract, however, retained natural liberty was still regulable so long as those regulations were in pursuit of the public good and made by a representative legislature. 134 As William Blackstone observed, natural liberty could be “so far restrained by human laws . . .  as is necessary and expedient for the general advantage of the public.” 135 Importantly, this framework did not endorse governmental power to abridge retained natural rights. Rather, it simply recognized that individuals in a political society assumed certain reciprocal obligations that did not exist in a state of nature. 136 Regard for the public good, in other words, was always implicit in the retention of natural rights.

In sum, whether inherently limited by natural law or qualified by an imagined social contract, retained natural rights were circumscribed by political authority to pursue the general welfare. Decisions about the public good, however, were left to the people and their representatives—not to judges—thus making natural rights more of a constitutional lodestar than a source of judicially enforceable law. 137 N atural rights , in other words, dictated who could regulate natural liberty and why that liberty could be restricted, but they typically were not “rights” in the modern sense of being absolute or presumptive barriers to governmental regulation .

Speaking, writing, and publishing were thus ordinarily subject to restrictions under law s that promoted the public good. The principle that “Speech is a natural Right . . . reserved,” Thomas Hayter explained, was consistent with “the Power of Legislators, to restrain every impious, or immoral Abuse of speech” because “The principal End of every Legislature is the public Good.” 138 Or, as another writer put it, the “right to speak and act without controul . . . is limited by the law—Political liberty consists in a freedom of speech and action, so far as the laws of a community will permit, and no farther.” 139

Consequently, even though the Founders broadly acknowledged that speaking, writing, and publishing were among their natural rights, governmental limitations of expressive freedom were commonplace. B lasphemy and profane swearing, for instance, were thought to be harmful to society and were thus subject to governmental regulation even though they did not directly interfere with the rights of others . 140 Some states even banned theater performances because of their morally corrupting influence. 141 Although stated without qualification , and often viewed by modern interpreters as being unconditional , 142 natural rights were always implicitly qualified , with the scope of their qualifications often turning on assessments of public policy .

Yet while the Founders broadly agreed that governmental power should be defined and exercised only to promote the general welfare, they often disagreed passionately about the details. As Joseph Priestley noted, there was “a real difficulty in determining what general rules, respecting the extent of the power of government, or of governors, are most conducive to the public good.” 143 And nowhere was this difficulty more pronounced than the long-running controversy over sedition laws.

Arguments for punishing sedition were straightforward. It was “necessary for the preservation of peace and good order,” Alexander Addison of Pennsylvania explained, “to punish any dangerous or offensive writing, which, when published, shall, on a fair and impartial trial, be adjudged of a pernicious tendency.” 144 Proponents of this view rejected the argument that narrowly tailored sedition laws would stifle useful criticisms of government and that counter-speech was sufficient to prevent lasting harm. 145 “It may be said, that an unrestrained license to publish on the conduct of public men, would operate as a restraint upon [the government], and thus promote the public good,” Massachusetts Governor James Sullivan wrote, “but this is not true; an unrestrained license to publish slander against public officers, would . . . answer no possible valuable purpose to the community.” 146 In fact, some argued that it was even more necessary to punish sedition in a republic. “In a Republican Government, where public opinion rules everything,” John Rutledge Jr. insisted during the Federalist effort to reauthorize the Sedition Act in 1801, “it is all-important that truth should be the basis of public information.” 147

Other eighteenth-century writers, however, argued that punishing sedition would, in the long run, harm the general welfare, even though sedition itself was deleterious. “The great object of society—that object for which alone government itself has been instituted, is the general good ,” Elizabeth Ryland Priestley wrote in 1800. 148 Thus, she continued, “It may perhaps be urged, and plausibly urged, that the welfare of the community may sometimes, and in some cases, require certain restrictions on [an] unlimited right of enquiry: that publications exciting to insurrection or immorality for instance, ought to be checked or suppressed.” 149 Yet “ascertaining the proper boundary of such restrictions” would be vexing, she observed, and governmental power to regulate harmful speech, “once conceded, may be extended to every [opinion] which insidious despotism may think fit to hold out as dangerous.” 150 Moreover, as Republicans frequently argued, fear of being prosecuted might have a chilling effect on useful criticisms of government. 151

Notably, these arguments all relied on contingent judgments about public policy—not an understanding of natural rights that categorically permitted or barred governmental efforts to suppress expression, irrespective of the public good. 152 Americans thus offered vastly different visions of how far expressive freedom should extend (due to differing calculations of what best furthered the public good) even while sharing the same conceptual understanding of speech and press freedoms.

Further evidence of the Founders’ conceptual understanding of expressive freedom comes from their recognition of an equality between speech and press freedoms and, at the same time, their acceptance of distinct legal rules regarding oral and written statements. “The freedom of speech of writing and of printing are on equal grounds by the words of the constitution,” one commentator observed in 1782, referring to the Pennsylvania constitution. 153 As concepts, therefore, the freedoms of speaking, writing, and publishing were identical, allowing the government to punish only “the disseminating or making public of falsehoods, or bad sentiments, destructive of the ends of society.” 154 Yet these equivalent principles were perfectly consistent with broader liability and harsher punishment for written libels. “The reason,” the commentator explained, was that written statements were “more extended” and “more strongly fixed,” thus posing a greater threat to public order. 155 In short, speech and press freedoms were equivalent, as natural rights, but the legal implications of these rights differed.

B. Inalienable Natural Rights and the Freedom of Opinion

Unlike ordinary natural rights, which were regulable to promote the public good, certain inalienable natural rights imposed more determinate constraints on legislative power. 156 These rights, Nathaniel Chipman explained, were aspects of natural liberty that “can never justly be subject to civil regulations, or to the control of external power.” 157 Some writers limited this category to the freedoms of conscience and thought 158 without necessarily including a correlative liberty to exercise religion or to express thoughts. 159 “Op inions are not the objects of legislation ,” James Madison succinctly explained to his congressional colleagues in 1794. 160 Few would have disagreed. But by the late eighteenth century, Americans widely embraced the idea that the government could not prohibit well-intentioned statements of one’s thoughts, either.

Opinions were sacrosanct because they were understood to be non-volitional. 161 Unlike “ Volition , or Willing ,” John Locke explained, “in bare naked Perception the Mind is, for the most part, only passive; and what it perceives, it cannot avoid perceiving.” 162 Consequently, in Francis Hutcheson’s words, “the Right of private Judgment, or of our inward Sentiments, is unalienable; since we cannot command ourselves to think what either we our selves, or any other Person pleases . ” 163 Or, as Madison put it in his famous Memorial and Remonstrance , “the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men.” 164 The freedom of opinion was thus, at its core, a freedom against governmental efforts to punish people for their thoughts. (The Founding Era term “freedom of opinion ” is thus somewhat misleading; the essence of the principle was protection for non-volitional thoughts . 165 )

Americans often invoked the freedom to have opinions to defend a correlative freedom to express opinions. 166 Among the natural rights that individuals had not surrendered to government, Thomas Jefferson wrote in 1789, were “ the rights of thinking, and publishing our thoughts by speaking or writing .” 167 The inalienability of this liberty was broadly recognized. All men had a right “of speaking and writing their minds—a right, of which no law can divest them,” Congressman John Vining observed in January 1791, before the First Amendment was ratified. 168 This right, Fisher Ames echoed in agreement, was “an unalienable right, which you cannot take from them, nor can they divest themselves of.” 169 Any abridgment of that right, he insisted, would be “nugatory.” 170

The freedom to express thoughts, however, was limited to honest statements—not efforts to deceive others. “The true liberty of the press is amply secured by permitting every man to publish his opinions,” Pennsylvania jurist Thomas McKean explained in 1788, “but it is due to the peace and dignity of society to enquire into the motives of such publications, and to distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame.” 171 For that reason, this Article often refers to a “freedom to make well-intentioned statements of one’s thoughts.” The Founders, immersed in their own constitutional language, hardly needed such a periphrastic term; they could simply invoke the “freedom of opinion” or “freedom of speech.”

Sedition laws were thus facially consistent with the freedom of opinion when confined to false and malicious speech. “Because the Constitution guaranties the right of expressing our opinions, and the freedom of the press,” Federalist John Allen asked rhetorically during the congressional debates over the Sedition Act, “am I at liberty to falsely call you a thief, a murderer, an atheist?” 172 Answering his own question, and again treating the First Amendment as guaranteeing “the liberty of opinion and freedom of the press,” 173 Allen implored that “[t]he freedom of the press and opinions was never understood to give the right of publishing falsehoods and slanders, nor of exciting sedition, insurrection, and slaughter, with impunity. A man was always answerable for the malicious publication of falsehood; and what more does this bill require?” 174 Over and over, Federalists emphasized the requirement of “a false and malicious intention.” 175

Opponents of the Adams Administration saw through the Federalist charade, viewing the Sedition Act as part of “a legislative program designed to cripple, if not destroy, the Republican Party.” 176 Frequent complaints that Federalists had “countenance[d] a punishment, for mere freedom of opinion,” thus appear justified. 177 Yet in their more contemplative moments, some Republicans recognized that the Sedition Act itself fell short of abridging the freedom of opinion. If the law were perfectly administered, one Virginia editorial noted, “No person  . . . would be the subjects of ruin under this statute, unless they annexed to those opinions a design that was not pure.” 178 Or, as libertarian writer John Thomson acknowledged, if prosecutions “were not for the publication of opinions , then the Constitution has not been violated by them.” 179

Also notable about the Sedition Act controversy, however, was the nearly universal acknowledgment by Federalists that well-intentioned statements of opinion, including criticisms of government, were constitutionally shielded. 180 “[I]t is well known,” Alexander Addison remarked, “that, as by the common law of England, so by the common law of America, and by the Sedition act, every individual is at liberty to expose, in the strongest terms, consistent with decency and truth all the errors of any department of the government.” 181 Federalists, in other words, firmly rejected the long-discredited rule that “no private man can take upon him[self] to write concerning the government at all.” 182 By limiting the Sedition Act to false and malicious statements, and by providing a truth defense, 183 Federalists could reasonably claim fidelity to this longstanding respect for the freedom of opinion. Indeed, Federalists sought to renew the Sedition Act in January 1801—with a new administration poised to take the helm—because the Act, in their view, had “enlarged instead of abridg[ed] the ‘liberty of the press.’” 184

Scholars, however, routinely overlook Federalist support for expressive freedom. Defenders of the Sedition Act, one author writes, equated “the freedom of speech and press” with an understanding that “government could restrain speech post-publication or post-utterance in whatever way it pleased.” 185 In fact, not a single Federalist in Congress took that view. To be sure, many Federalists interpreted the freedom of the press as simply a rule against prior restraints—an idea that we will turn to next. 186 But the First Amendment, as Federalist Harrison Gray Otis explained, also guaranteed “the liberty of writing, publishing, and speaking, one’s thoughts, under the condition of being answerable to the injured party, whether it be the Government or an individual, for false, malicious, and seditious expressions, whether spoken or written.” 187 This was a qualified liberty, of course, and perhaps inadequate when executed by a partisan administration and partisan judiciary. But Federalists widely accepted the freedom of opinion, even in the late 1790s.

Readers may be curious about the scope of the freedom to make well-intentioned statements of one’s thoughts—whether, for instance, it applied to certain forms of expressive conduct like flag burning or political donations. Historical evidence offers no clarion answers, but the principles of social-contract theory frame the inquiry in a way that disfavors categorical protection for expressive conduct. To be sure, engaging in expressive behavior was an innate human capacity, so it was properly understood as falling within the natural right of expressive freedom. 188 But there was little basis for recognizing an inalienable natural right of expressive conduct. The scope of inalienable rights, after all, depended on whether individuals were physically capable of parting with certain aspects of natural liberty and, if so, whether collective control of that liberty would serve the public good. 189 Some expressive conduct, like instinctive smiles, surely fell on the side of inalienability. But when expressive conduct caused harm and governmental power to restrict that conduct served the public good, there is no reason to think that the freedom of opinion nonetheless immunized that conduct.

Consequently, although the freedom of opinion was fixed in some respects—allowing individuals to criticize the government in good faith, for instance—determining its scope called for the same policy-driven analysis that characterized the Founders’ general approach to natural rights. In short, outside of the core protection for well-intentioned statements of one’s thoughts, the boundaries of the freedom of opinion depended on political rather than judicial judgments.

C. Common-Law Rights and the Freedom of the Press

In addition to inalienable natural rights, state declarations of rights in the 1770s and 1780s also included numerous fundamental positive rights, like the right to trial by jury and the rule against ex post facto laws. Unlike “natural liberty . . . retain[ed],” one Anti-Federalist noted, fundamental positive rights were “particular engagements of protection, on the part of government.” 190 These were rights defined in relation to governmental authority. And what made them “fundamental” was an acceptance of their inviolability, usually based on their recognition in the social contract or constitution. 191 In short, these rights were, as Thomas Jefferson explained in 1790, “certain fences which experience has proved particularly efficacious against wrong, and rarely obstructive of right.” 192 Interestingly, Jefferson classified the freedom of the press as a fundamental positive right. 193

Scholars typically assert that the freedom of speech and the freedom of the press were equivalent, 194 and, as we have seen, those concepts were equivalent as natural rights. 195 Yet in the context of enumerated bills of rights, discerning the meanings of these freedoms is more complicated and reveals an important difference between speech and press freedoms. 196 The Pennsylvania Constitution of 1776, for instance, separated the “ right to freedom of speech, and of writing, and publishing ” from “ the freedom of the press .” 197 That split strongly suggests a distinction in meaning. And Jefferson’s letter suggests an intriguing explanation: the term “freedom of the press” could denote a particular fundamental positive right.

The content of this right was widely known. “The liberty of the press,” William Blackstone had famously declared, “ consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” 198 And without a governmental censor, local juries rather than royal agents controlled how far publishing could be restricted. “The liberty of the press, as established in England,” Jean Louis de Lolme wrote in 1775, effectively meant that courts considering libels against printers “must . . . proceed by the Trial by Jury.” 199

Americans , and particularly those with legal training, frequently echoed these ideas . “[W]hat is meant by the liberty of the press ,” James Wilson observed during the 1787 ratification debates, “ is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual .” 200 Others mentioned the importance of empowering juries to determine the proper bounds of expressive freedom. “[S]hould I be unjustly accused of [sedition],” Virginia lawyer Alexander White remarked, “the trial by a jury of my countrymen is my security—if what I have said or wrote corresponds with their general sense of the subject, I shall be acquitted.” 201

In sum, although many of the Founders discussed press freedom as a natural right, it also had a readily available meaning as a fundamental positive right against press licensing, thus empowering juries to determine the proper scope of expressive freedom.

D. Nature and Law

The notion that speech and press freedoms referred to natural rights, inalienable natural rights, and fundamental positive rights may appear confused or even contradictory. In the eighteenth century, however, these rights were closely intertwined. 202 The fundamental positive rights embodied in common law informed understandings of natural rights, and vice versa.

The common law did not directly recognize natural rights as a set of positive rights. Natural rights, after all, were simply the liberty that humans would enjoy in a state of nature, bounded by the dictates of natural law. In contrast to positive rights, they were not defined in terms of governmental action or inaction. When a constitution protected certain natural rights against abridgment, however, it became important to determine the scope of retained natural liberty. And to assist with this task, the Founders naturally turned to positive law, and particularly the common law.

The common law was probative, in part, because it helped define the natural-law boundaries of natural rights. 203 Natural law, we must recall, was not a finely tuned set of legal rules. Rather, it embodied the dictates of reason and justice. “We discover it,” James Wilson explained, “by our conscience, by our reason, and by the Holy Scriptures.” 204 Not surprisingly, therefore, the Founders recognized considerable underdeterminacy about what natural law required. 205 “[W]hoever expects to find, in [reason, conscience, and the Holy Scriptures], particular directions for every moral doubt which arises,” Wilson cautioned, “expects more than he will find.” 206

In day-to-day practice, then, natural law itself provided little guidance about how to resolve difficult legal questions. Instead, lawyers and judges used a system of customary legal rules known as the common law. Yet the legal system operated on the assumption—or at least the fiction—that the common law and natural law were in harmony. 207 “The common law ,” Alexander Addison characteristically observed, “is founded on the law of nature and the revelation of God.” 208 Consequently, the common law could help determine the proper boundaries of natural liberty. Governmental powers recognized at common law were presumptively acceptable, while common-law limits on those powers (such as the rule against prior restraints) recognized presumptively unjustified abridgments of natural rights .

Moreover, for those who viewed social obligations as stemming from common consent rather than from natural law, the common law helped delineate the scope of those obligations. The common law, after all, had the presumptive consent of the people over an extended period. “[L]ong and uniform custom,” English jurist Richard Wooddeson explained, “bestows a sanction, as evidence of universal approbation and acquiescence.” 209 Though certainly not immune to change, 210 the common law at least presumptively comported with the reciprocal obligations that individuals had assumed in the social contract. In short, customary positive law helped reveal the proper scope of natural liberty.

At the same time, Americans sometimes used natural-law reasoning to shape their understanding of positive law. This approach reflected the prevalent view that positive law should reflect and conform to natural law. “[M]unicipal laws are under the control of the law of nature,” Wilson noted in his law lectures, meaning that natural law was superior to positive law. 211 Because of its underdeterminacy, natural-law reasoning was typically reserved within legal circles for resolving ambiguities in the common law or statutory law; judicial assessments of natural justice could not displace positive law. 212 Among the laity, however, the priority of natural law sometimes prompted calls for an abandonment of legal pedantry. “It is our business to do justice between the parties,” John Dudley of New Hampshire opined about the jury’s role, “not by any quirks of the law out of Coke or Blackstone, books I have never read, and never will, but by common sense and common honesty as between man and man.” 213 Some Republican lawyers took a similar view. The meaning of Virginia’s press clause, lawyer George Hay opined, “presents a great constitutional question, the solution of which depends, not on cases and precedents furnished by books, but on principles whose origin is to be traced in the law of nature, and whose validity depends on their tendency to promote the permanent interests of mankind.” 214

Not surprisingly, then, forceful disagreements emerged about the extent to which the common law defined the scope of natural rights. 215 During the ratification debates, for instance, lawyers like James Wilson, Rufus King, and Alexander White equated press freedom with the common-law rule against press licensing. 216 A decade later, when Republicans attacked the Sedition Act of 1798 as violating the freedom of the press, Federalist lawyers again turned to the familiar terrain of legal authority. “By the freedom of the press,” jurist Alexander Addison insisted, the Press Clause “must be understood to mean the freedom of the press as it then existed at common law in all the states.” 217

For Americans with less elitist inclinations, however, determining the scope of natural rights was not exclusively within the ken of professionally trained lawyers. James Madison’s famous Virginia Report of 1800, for instance, made arguments from “plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts” to wage an extended attack on Federalist reliance upon the common law. 218 It would be a “mockery” to confine press freedom to a rule against prior restraint, Madison implored, because post-publication punishments would have the same effect of suppressing expression. 219 Moreover, practical experience showed that American printers enjoyed a “freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law.” 220 It was thus “natural and necessary,” Madison concluded, that press freedom in the United States went beyond the confines of English common law. 221

Scholars, it is worth cautioning, have overstressed this part of the Virginia Report. Madison, whose views on expressive freedom were more liberal than those of his colleagues, plainly identified these observations as being “for consideration only,” without, “by any means, intend[ing] to rest the [constitutional] question on them.” 222 (The Virginia Report actually rested its constitutional argument on the First Amendment’s supposed denial of federal power to impose any restrictions on printers.) 223 Nonetheless, Madison’s mode of reasoning in this political dictum reflected an important strand of Republican thought grounded in a natural-rights view of expressive freedom.

III. explicating the first amendment

Now that we have a grasp on how the Founders talked about rights in general, and about speech and press freedoms in particular, we can more closely evaluate the original meanings of the First Amendment .

This Part begins with an analysis of the ratification debates and drafting of the First Amendment. It draws two principal conclusions. First , the impetus for a bill of rights was a desire to enumerate well-recognized rights, not create new ones. Consequently, historical context strongly supports the view that the Speech and Press Clauses incorporated the meanings of expressive freedom discussed in Part II. Second , although originalist scholarship tends to treat speech and press freedoms as equivalent, the ratification debates reinforce that the Founders often referred to these ideas distinctly, particularly when mentioning press freedom as a fundamental common-law right.

Then, Section III.B synthesizes the evidence in Part II and Section III.A to assess the most likely original meanings of the Speech and Press Clauses. It argues that the Speech and Press Clauses recognized both abstract principles and concrete legal rules that were grounded in Founding Era rights discourse. The Section then responds to some competing accounts of the First Amendment’s original meaning.

A. Enumerating Expressive Freedoms

The Constitution drafted by the Philadelphia Convention famously lacked a declaration of rights. 224 T h is omission quickly became a favorite point of attack for the opponents of ratification, commonly known as the Anti-Federalists. 225 Especially dangerous, Anti-Federalists insisted, was unchecked congressional power under the Necessary and Proper Clause. 226 “The powers, rights, and authority, granted to the general government by this constitution,” Brutus explained, “are as complete, with respect to every object to which they extend, as that of any state government.” 227 Consequently, a federal declaration of rights was every bit as necessary as state declaration s in order to restrict the means of federal power.

Anti-Federalists often focused their criticisms on the lack of protection for the freedom of the press. But their references to press freedom were usually cursory, with no elaboration about what the term meant or what a declaration in its f avor would accomplish. Often Anti-Federalists simply pointed out numerous ways that the federal government could regulate printers —whether through “the trial of libels , or pretended libels against the United States , ” 228 taxes on newspapers, 229 the copyright authority, 230 or federal power over the capital district. 231 Importantly, these worries often went beyond mere concern about prior restraints, 232 but Anti-Federalists rarely suggested how an enumerated guarantee of press freedom would constrain federal authority . 233

Notably, the freedom of speech played almost no role in the public jousting that occurred in newspapers, pamphlets, and state ratification conventions. 234 Anti-Federalist fears about unenumerated rights, it turns out, usually focused on positive rights that imposed more determinate limits on governmental authority. 235 (Scholars, by contrast, often describe the freedom of speech as an important Anti-Federalist issue, but their evidence notably mentions only the liberty of the press, again highlighting the scholarly conflation of speech and press rights.) 236 Amidst the wide-ranging and creative arsenal of Anti-Federalist arguments, concern about the freedom of speech was conspicuously missing.

In response to Anti-Federalist admonitions about the liberty of the press , Federalists generally made two related arguments. First, many explained that bills of rights were merely declaratory of pre-existing rights and were therefore legally unnecessary. 237 It was “absurd to construe the silence  . . . into a total extinction” of the press right, John Jay insisted, because “silence and blank paper neither grant nor take away any thing.” 238 The Virginia and New York ratification conventions later passed declaratory resolutions making the same point. 239 Indeed, many Federalists thought that fundamental positive rights were recognized in the social contract, 240 obviating any need for subsequent enumeration, just as modern legislation hardly needs to specify that it operates only within constitutional boundaries.

Second, Federalist d enials of authority to abridge the liberty of the press relied on the lack of any enumerated power that would justify a licensing regime. In response to the Anti-Federalist argument that the federal government might abridge the freedom of the press under the taxing power, for instance, Alexander Hamilton asked in Federalist No. 84 , “ why declare that things shall not be done which there is no power to do?” 241 But Hamilton, unlike some of his Federalist colleagues, 242 was not rejecting all federal power over printers . Rather , he clarified, “declarations . . . in favour of the freedom of the press” were not understood to be “a constitutional impediment to the impositions of duties upon publications.” 243

When it came to natural rights, Federalists used a similar tack. Rather than denying any federal authority over speech, Federalists insisted that protections for natural liberty were superfluous under republican governments. As we have seen, 244 that argument had considerable merit. In some sense, the people in a republic retained every aspect of natural liberty because no natural rights were surrendered to an unaccountable monarch. Enumerating retained natural rights, Federalists therefore concluded, would be pointless. In republics, Alexander Hamilton explained in Federalist No. 84 , “the people surrender nothing, and as they retain every thing, they have no need of particular reservations.” 245

As the ratification contest dragged on, however, some Federalists gradually perceived a need for amendments to quell Anti-Federalist opposition. 246 Declaring rights, they realized, would help undercut Anti-Federalist calls for broader reforms. 247 Some men, including Thomas Jefferson and James Madison, also came to recognize merit in the Anti-Federalist arguments. 248 Al though Congress was confined to enumerated powers, Madison explained in his speech introducing a draft of amendments to the House of Representatives that it “has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the s tate g overnments under their constitutions may to an indefinite extent.” 249

Madison was not admitting that Congress could properly abridge customary rights. Nonetheless, Congress had power under the Necessary and Proper Clause “to fulfil every purpose for which the government was established,” and it was “for them to judge of the necessity and propriety to accomplish those special purposes.” 250 Madison had previously criticized declarations of rights as mere “paper barriers,” but in his congressional speech he justified the m as having “a tendency to impress some degree of respect for [rights] , to establish the public opinion in their favor, and rouse the attention of the whole community.” 251 Moreover, he noted, a written guarantee would help embolden judges to uphold their legal duty to enforce certain rights. 252 In short, an enumeration of rights might be useful after all .

Madison’s initial proposal for constitutional recognition of expressive freedom was divided in two parts: “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.” 253 His notes suggest that he also remarked to his colleagues that speech and conscience were among the “ natural rights , retained .” 254 By contrast, his separation of the right of speaking, writing, and publishing from the freedom of the press suggests a positive-law connotation of press freedom. 255

This dual structure became clearer within the House Committee of Style when Roger Sherman proposed dividing these clauses into separate articles. In one article, he addressed “certain natural rights which are retained,” including the right “of Speaking, writing and publishing . . . with decency and freedom.” 256 Six articles later, he presented a two-part ban on licensing rules: “Congress s hall not have power to grant any monopoly or exclusive advantages of C ommerce to any person or Company; nor to restrain the liberty of the Press.” 257 Notably, only Sherman’s proposed press clause, surely meant as a rule against press licensing, was framed as a categorical denial of congressional power.

For unknown reasons, but probably just for sake of brevity, the Committee of Style shorten ed Madison’s proposal to read : “The freedom of speech, and of the press, . . . shall not be infringed.” 258 And, with various revisions accepted in the Senate, the third proposed amendment eventually read: “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.” 259 The drafters of the final version of the amendment thus, perhaps unwittingly, stripped away the earlier textual indication that speech and press freedoms had distinct meanings.

B. Original Meanings

So, what did the Speech and Press Clauses originally mean? A detailed answer to that question would require an account of what it means for a clause to have a “meaning,” 260 both conceptually and in terms of evidentiary thresholds. And the Founders often disagreed about methods of constitutional interpretation, so assigning a definitive “original meaning” to any constitutional clause may require contestable methodological choices. 261 Rather than venturing down that path, this Section simply points out a range of possibilities that—while different in some respects—display a substantial degree of agreement among Founding Era elites. In doing so, it focuses on conceptual meanings of the Speech and Press Clauses, not their precise doctrinal details. This synthesis suggests that the best account of the First Amendment’s meaning is likely one rooted in a multifaceted view of expressive freedom, recognizing the interplay of natural rights, inalienable natural rights, and fundamental common-law rights. Importantly, this account reveals, at least in some respects, distinct meanings of the Speech and Press Clauses.

Because expression was a natural right, one possibility is that the Speech and Press Clauses originally referred exclusively to ordinary natural rights that were fully regulable to promote the public good. 262 Under this view, customary protections for speech and press freedoms would likely suggest the proper bounds of natural liberty—perhaps even directing judges to interpret statutes “equitably” to avoid conflicts with these longstanding rules—but without imposing any fixed, judicially enforceable restraints on legislative power. 263 The Speech and Press Clauses, in other words, might have had legal implications without constitutionally ossifying any particular set of legal rules.

This is a plausible view. Speaking, writing, and publishing were liberties that people could exercise without governmental intervention, and the Founders thus viewed these freedoms as being among their natural rights. This liberty, moreover, was circumscribed by social obligations—either imposed by natural law or voluntarily assumed in a social contract—and therefore only restrictions of expression beyond those that promoted the public good were “abridgments” of natural rights. 264 Consequently, as Republican lawyer George Hay summarized in 1799, a natural-rights understanding of the First Amendment would “amount precisely to the privilege of publishing,” as well as speaking and writing, “as far as the legislative power shall say, the public good requires.” 265

Other Founding Era commentary supports the possibility that the Speech and Press Clauses referred exclusively to natural rights. Not all aspects of Founding Era bills of rights, we must recall, had determinate meanings. Indeed, some declarations of rights announced principles that were, as Alexander Hamilton disparagingly put it in Federalist No. 84 , “aphorisms” that “would sound much better in a treatise of ethics than in a constitution of government.” 266 Provocatively, and perhaps disingenuously, Hamilton insisted that the freedom of the press was so indeterminate that “whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.” 267

Nonetheless, the Founders often described declarations of rights as supplying stricter limits on legislative authority. A bill of rights, Theophilus Parsons remarked, should specify both “unalienable natural rights,” over which “the supreme power hath no control,” and a set of fundamental positive rights, “also unassailable by the supreme power.” 268 Indeed, one of James Madison’s principal rationales for a bill of rights in 1789 was to limit the “discretionary powers with respect to the means ” of federal authority. 269 If state bills of rights were useful “for restraining the state governments,” Madison explained, “there is like reason for restraining the federal government.” 270

Viewed in this light, it makes sense to construe the First Amendment as imposing at least some fixed limits on federal power. There is a compelling case, for instance, that the Press Clause codified at least a positive right against press licensing, thus putting juries in charge of restricting speech. 271 Meanwhile, the freedom of speaking, writing, and publishing —likely invoked in the Speech Clause—shielded from regulation any well-intentioned statements of one’ s thoughts (subject, of course, to the natural-law proscription against abridging the rights of others) . 272 As with most other enumerated rights, these principles constrained the means that the federal government could employ when exercising its other powers. And this positive-rights dimension of the Speech and Press Clauses reveals an important distinction in their meanings.

Following this train of thought, perhaps the Speech and Press Clauses referred exclusively to these more determinate customary rules, without directly recognizing a retention of the broader (but shallower) natural right of expressive freedom. Federalists in the late 1790s, it turns out, often interpreted the First Amendment in precisely this way. “By the freedom of the press,” Addison implored, the Press Clause “must be understood to mean the freedom of the press as it then existed at common law in all the states.” 273

Finally, perhaps the Speech and Press Clauses in the First Amendment recognized both the natural right of expressive freedom (in which the Speech and Press Clauses had a common meaning) and the more determinate customary protections for expression (in which the Speech and Press Clauses had distinct meanings). Like the other historical accounts of the First Amendment’s original meaning, this interpretation recognizes the interplay between natural rights, inalienable natural rights, and positive law, and it differs only by suggesting that this full spectrum of rights was incorporated into the Constitution itself. The First Amendment, on this account, recognized any customary legal principles that protected speech and the press while also recognizing that, apart from these rules, Congress was otherwise free to limit expression in pursuit of the public good (subject, of course, to any other constitutional constraints). In my view, this account best fits the available historical evidence, which shows the Founders constantly and fluidly moving between different notions of speech and press freedoms. Moreover, isolating First Amendment rights to a particular aspect of Founding Era expressive freedom seems dubious in light of the Ninth Amendment’s implied reservation of rights.

In sum, it remains debatable whether the Speech and Press Clauses directly recognized ordinary natural rights, a set of more determinate legal rights, or both. But because of the fluid relationship between natural rights and positive rights, all of these possibilities point in basically the same direction: the First Amendment recognized (either implicitly or outright) the ordinary natural right of expressive freedom along with (either absolute or presumptive) protection for a set of customary rules with more determinate legal meanings. 274

Other accounts of original meaning, however, are much less plausible. A common view is that the “freedom of speech” in the First Amendment was analogous to the “freedom of speech and debate” mentioned in Article I (and in various state constitutions) . 275 That freedom was a separation-of-powers rule, barring legislators from being punished by the executive or judiciary for their speeches and activities within the legislative chamber. 276 But legislatures could, and occasionally did, punish their own members at will. 277 Based on this supposed genealogy of the freedom of speech, scholars often conclude that the First Amendment’s protections are confined to political expression—the type of speech that typically occurs in legislative assemblies. 278

This interpretation of the Speech Clause has a variety of problems. First and foremost, legislative privilege played basically no role in Founding Era debates about the First Amendment. 279 This lack of historical evidence may not bother “intratextualists,” who are known to “draw[] inferences from the patterns of words that appear in the Constitution even in the absence of other evidence that these patterns were consciously intended.” 280 This Article’s analysis, however, focuses on historical understandings of speech and press freedoms, not modern textualist theories. And there simply is no evidence that anybody in the late 1780s thought that the freedom of speech was directly analogous to, or drew its meaning from, the legislative privilege of speech and debate. Another difficulty is that the Founding Era right of speaking, writing, and publishing clearly extended to any subject, not just to political matters. 281

Other scholars assert that the Speech Clause made speech “not subject to legislative regulation for the public good” but “nevertheless limited by the rights of others.” 282 Reading the text of the First Amendment in isolation might support this so-called “libertarian” view. For those Founders who defined natural rights without regard to social obligations, after all, restrictions of natural liberty to promote the common good could easily be understood as “abridgments” of the liberty that had existed in a state of nature.

Viewed in historical context, however, this “libertarian” interpretation of the First Amendment is incomplete. To be sure, the Founders thought that the freedom to make well-intentioned statements of one’s views was an inalienable natural right, rendering improper any restrictions that did not flow from natural law. And since the government itself did not possess natural rights that could be abridged, it was beyond the power of the government to punish speech that criticized the government in good faith. 283 These were important departures from the view that speech was always regulable in the public interest.

But the freedom of opinion did not encompass all expression. Individuals who joined together in a social contract, after all, had no reason to immunize efforts to lie or mislead. Nor did they need to prevent the government from preserving norms of civility and morality, like rules against blasphemy and profane swearing. Indeed, the Founders constantly mentioned that the inalienable right to speak was limited to those who spoke with decency and truth, 284 and state governments routinely and uncontroversially restricted plenty of speech that did not directly violate the rights of others. 285 Evidence from the late 1780s and early 1790s provides no indication that the First Amendment adopted a different understanding of expressive freedom.

Just the opposite, in fact. The Founders widely viewed enumeration as a conservative project meant to preserve existing rights, not to change their meaning or scope. 286 The proposed amendments, James Madison informed his congressional colleagues, provided for “simple and acknowledged principles” and not ones of “a doubtful nature . ” 287 The purpose of enumeration, in other words, was to guarantee at the federal level the rights already recognized by state constitutions and social contracts. Consequently, to the extent that states could regulate expression without “abridging” reserved natural liberty, the federal government could properly do so as well. 288 The freedom of expression that could not be “abridged,” in other words, was a liberty qualified by social obligations that stemmed either from natural law or from the imagined social contract. 289

Nor did the First Amendment, as some scholars suggest, elevate speech to a constitutionally privileged liberty interest to be defended by free-ranging judicial supervision. 290 Founding Era judges, after all, were confined to defending “marked and settled boundaries” of governmental authority, disregarding legislation only where constitutional violations were clear. 291 Judges could not apply jurisprudential concepts “regulated by no fixed standard” on which “the ablest and the purest men have differed,” 292 even when those principles were enumerated in a written Constitution. 293 Judicial applications of the First Amendment were therefore limited to enforcing customary legal principles, 294 even though the concept of expressive freedom, as a natural right, had a far broader range of potential implications.

Finally, the First Amendment did not comprehensively ban federal regulations of expression. 295 This view became prominent only later in the 1790s, when Republicans realized that Federalist control of all three branches of the federal government, combined with the administration’s ability to choose jurors, threatened their political survival. 296 The First Amendment, many Republicans argued, imposed a “total exemption of the press from any kind of legislative control,” leaving state common-law suits for abridgments of private rights as the only permissible limits on expression. 297

Modern proponents of this view find support in the First Amendment’s opening phrase, “Congress shall make no law.” 298 However, a provision that “Congress shall make no law past some threshold”— such as the abridgment of the freedom of speech or of the press— simply does not suggest a lack of regulatory power leading up to that threshold. If anything , it implies just the opposite, as Federalist defenders of the Sedition Act repeatedly pointed out with glee. 299

Another amendment passed by the House of Representatives in 1789 reinforces that the First Amendment did not withdraw all authority regarding speech and the press. In addition to declaring that “[t]he Freedom of Speech, and of the Press . . . shall not be infringed”—a rule applicable only to the federal government—the House passed a propos al that “[n]o State shall infringe . . . the freedom of speech, or of the press.” 300 If infringement s of speech and press freedom s arose from any controls over expression , then this proposal would have barred state laws against libel, defamation, conspiracy, threats, profanity, blasphemy, perjury, sedition, and so forth. All of these laws, after all, suppress various forms of communication. But no evidence suggests that the House of Representatives was radically proposing to bar any federal or state limits on expression . 301 Rather, the First Amendment —just like its state-restraining counterparts—left ample room for the government to regulate speech in promotion of the public good, so long as it respected customary legal protections as well .

IV. using history

How might this history inform modern constitutional interpretation? Most judges and scholars incorporate history into their interpretative method in some way. 302 But uses of history vary substantially. Originalism in particular now comes in many forms, and the Founding Era history of speech and press freedoms might inform originalist analysis in a range of ways.

One option is simply to return wholesale to a Founding Era perspective, recognizing that judges are not well positioned to evaluate whether a legislature has acted in good faith or whether restrictions of speech promote the public good. 303 In short, this approach would call for dismantling a huge swath of modern free-speech law. For instance, the Supreme Court’s foundational decision in New York Times v. Sullivan , 304 which makes it harder for public officials to sue for defamation, conflicts even with the libertarian strand of Founding Era thought. 305 And while the Founders viewed well-intentioned statements of one’s thoughts as shielded from regulation, there is no indication that this principle would have extended to, say, donations to a political candidate. 306 Even assuming that giving money to a campaign is expressive, or is an exercise of the natural right to freedom of association, this activity was among the countless aspects of natural liberty subject to regulations that promote the general welfare.

Of course, many who use history in constitutional interpretation also accept the authority of precedent and may thus perceive modern speech law as too entrenched to be properly overruled. 307 Even under this view, Founding Era history may still have “gravitational force” in resolving ambiguities in modern doctrine. 308 Judges, for instance, often use conflicting definitions of what it means for a speech regulation to be “content based,” and a historically grounded approach may help resolve contested issues of this sort. 309

If we set aside Founding Era conceptions about the judicial role, 310 however, then modern doctrine is far easier—though perhaps still difficult—to justify on historical terms. In particular, a natural-rights reading of the Speech Clause would require the government to act for reasons that serve the public good , and scholars have noted that speech doctrine is largely structured as a way of smoking out illicit motives. 311 The heightened scrutiny that applies to content-based regulations, for instance, may correspond to an increased risk of parochial, rather than public-spirited, objectives.

Indeed, rather than serving as categorical legal “immunities” or “trumps,” modern free-speech rights often simply force the government to show a sufficient justification for abridgments of speech. 312 “Rights are not general trumps against appeals to the common good or anything else,” Richard Pildes explains about modern American law. 313 “[I]nstead,” he writes, “they are better understood as channeling the kinds of reasons government can invoke when it acts in certain arenas.” 314 A ban on all fires in public, for instance, would trigger a lower degree of judicial scrutiny than a ban on flag burning, even though both would effectively ban flag burning. 315 And in either scenario, the government would have a chance to show that the law is sufficiently tailored to serve sufficiently important governmental interests. Modern doctrine, in other words, still accommodates certain claims to the public good. 316

But certain claims only. The Court has staunchly resisted the notion, for instance, that claims to the public good might factor into the threshold decision of how closely courts should scrutinize speech restrictions. “The whole point of the First Amendment,” the Court recently declared, “is to afford individuals protection against [speech] infringements” justified by “a generalized conception of the public good.” 317 Rather, the Court has generally relegated the public-good analysis to the second stage of its analysis, thus putting the burden on the government to show the necessity of speech regulations and giving judges responsibility for ensuring, in the case of content-based regulations, that the proffered governmental interests are “compelling.” The public good can still override the speech right, but only rarely. 318

This approach departs from history in two ways: First, it waters down what was originally absolute protection for well-intentioned statements of one’s views—a category of speech over which the Founders often said that the government simply had no power (except to regulate statements that violated natural law). Second, beyond this category, modern doctrine inverts the Founding Era understanding of freedom of speech as a natural right by putting the onus on the government to demonstrate a “compelling” justification for speech restrictions and by making judges the arbiters of what interests are compelling. Historically, it was up to legislators to assess which restrictions of speech would best serve the common good, with very little room for judicial oversight. Speech doctrine has thus followed a familiar pattern across an array of constitutional rights in the twentieth century: a vast expansion in the scope of rights coupled with a notable decrease in the afforded level of protection. 319

Still, history offers at least some support for our non-absolutist approach to expressive freedom. Given the absence of any explicit textualist basis for a tiers-of-scrutiny approach, speech law is open to criticism by those who view rights as absolutes. The First Amendment’s opening declaration that “Congress shall make no law,” Justice Black famously insisted, does not invite judges to balance its protections against countervailing social interests. 320 Yet if Black had read the text of the First Amendment in a historically informed way, he might have been more sympathetic to the tiers-of-scrutiny approach that his colleagues on the Supreme Court were beginning to adopt. After all, beyond their protection for a narrow set of customary legal rights, the Speech and Press Clauses simply recognized the natural right of expressive freedom, and natural rights were always implicitly qualified by legislative authority to promote the public good.

On this view, modern doctrine is valid so long as it tries to confine the processes of democracy to a good-faith pursuit of the public good—a goal that aligns with a democracy-reinforcing account of judicial review 321 —or, perhaps, so long as it confines policy outcomes to those that comport with the public good. (The proper level of generality to use in making these decisions is unclear.) As noted above, 322 for instance, one could defend the tiers-of-scrutiny approach as a way of teasing out whether the government was restricting speech for public-spirited reasons or was simply trying to insulate itself from criticism. Or one might take the view that content-neutral regulations of speech are, on the whole, conducive to the public good, whereas content-based restrictions erode the benefits of an open speech marketplace. 323 But on either view, modern interpreters must make our own assessments of which doctrines best fulfill these objectives.

In giving doctrinal precision to underdeterminate constitutional provisions, Jack Balkin explains, “we are permitted, even encouraged, to favor some [historical] opinions over others—even minority opinions in their day—and render judgments on the past.” 324 In other words, although the history of speech and press freedoms might settle the meanings of the Speech and Press Clauses, we can learn from the mistakes of history in deciding how to apply those provisions today. Founding Era support for punishing sedition and blasphemy, for instance, would not prevent us from making our own determination about the consistency of these laws with the public good. Consequently, although the constitutional reach of governmental power over speech is certainly far different now than it was at the Founding, modern speech law could nonetheless have deeper historical roots, or more feasible historical justifications, than scholars often realize.

Rather than justifying modern rules in this way, however, the Supreme Court routinely claims to be shackled by history. Writing for the Court, Justice Scalia once insisted that the freedom of speech “is the very product of an interest balancing by the people,” leaving no room for governmental officials, including judges, to assess whether restrictions of speech promote the public good. 325 In a similar vein, the Court recently rejected as “startling and dangerous” an approach to the First Amendment that would allow judges to identify “low-value” speech based on its utility. 326 Instead, it asserted, “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” 327 And just two terms ago, the Court seemed to treat the distinction between content-based and content-neutral restrictions as baked into the First Amendment. 328

This Article has nothing to say about whether the rule against content-based regulations advances the public good, or whether confining low-value speech to traditional categories is a good idea. Those are empirical and value-based inquiries that have little to do with the Founding Era. But the history of speech and press freedoms overwhelmingly disproves the Supreme Court’s insistence that modern doctrines inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

As a natural right, expression was originally subject to regulations that furthered the public good, leading to vibrant and long-running constitutional debates about expressive freedom. Nearly everyone who spoke on the issue agreed that well-intentioned statements of one’s thoughts were constitutionally protected. A few people thought that any governmental efforts to suppress political speech caused more harm than good. But for most, deliberate efforts to mislead the public were a different matter entirely and were deserving of punishment. In sum, opinions were wide-ranging, with arguments cast at different levels of generality. It bears emphasis that, on the whole, natural rights provided only a framework for argument—not a set of determinate legal rights.

The pliability of natural rights thus fostered a dynamic constitutional culture at the Founding. Natural liberty could be restrained, as William Blackstone put it, only when “necessary and expedient for the general advantage of the public.” 329 Whenever natural liberty “is, by the laws of the state, further restrained than is necessary and expedient for the general advantage,” St. George Tucker declared in 1796, “a state of civil slavery commences immediately.” 330 Steeped in this tradition, the Founders virulently contested the scope of all sorts of governmental powers—including the capacity to regulate expression—from the standpoint of policy, all the while casting their arguments in terms of an unchanging original bargain.

Recognizing the contested relationship between natural rights and legal rules at the Founding also has implications that resonate beyond the context of expressive freedom. Scholars often read constitutional phrases like “freedom of speech,” “unreasonable searches and seizures,” and “cruel and unusual punishments” as, in the words of Jack Balkin, “abstract and vague rights provisions.” 331 Indeed, the presence of several open-textured provisions in the Bill of Rights seems to reinforce that the Founders often preferred general constitutional standards over specific constitutional rules. 332 This Article, however, joins other recent scholarship suggesting that many Founding Era legal elites saw none of these rules as being abstract or vague. Rather, in their minds, these provisions simply reaffirmed longstanding features of Anglo-American law.

In the Fourth Amendment context, for instance, Laura Donohue has shown that Founding Era jurists viewed the ban on “unreasonable” searches and seizures as a simple reference to customary legal rules. “[A]t the Founding,” she explains, “there was no such thing as a ‘standard of reasonableness,’ such as has marked the Fourth Amendment discourse since the 1967 case of Katz v. United States .” 333 Rather, Donohue uncovers, unreasonableness meant “‘against reason,’ which translated into ‘against the reason of the common law.’” 334

Along similar lines, John Stinneford persuasively argues that, far from stating a “vague moral command,” the Eighth Amendment rule against “cruel and unusual” punishments actually called for a careful study of the common law. 335 “[T]he best way to discern whether a government practice comported with principles of justice,” Stinneford writes, “was to determine whether it was continuously employed throughout the jurisdiction for a very long time, and thus enjoyed ‘long usage.’” 336

In part, this Article reinforces these arguments. For many Founding Era legal elites, the First Amendment—far from being vague or abstract—imposed discrete legal commands recognized at common law. The First Amendment, in other words, was not designed or originally understood to provide a font of judicially crafted doctrines protecting expressive freedom.

At the same time, the history of the First Amendment complicates the idea that seemingly abstract constitutional rights actually carried more determinate common-law meanings. 337 Many Founders, as this Article demonstrates, forcefully rejected lawyerly assumptions about constitutional interpretation. In this way, the Founders’ virulent contest over the legal implications of expressive freedom muddies the historical accounts offered by Donohue and Stinneford. If Republicans like George Hay were right that answering “a great constitutional question . . . depends, not on cases and precedents furnished by books, but on principles whose origin is to be traced in the law of nature,” 338 that observation resonated far beyond the topic of expressive freedom. 339

A scholarly focus on the indeterminacy of the original First Amendment may thus seem deserved. That emphasis, however, misses a crucial point. As concepts, speech and press freedoms were relatively well defined, even though written in a different language. And perhaps, with a hint of irony for those who seek constitutional stability in original meaning, this lost history reveals our modern dilemma: the proper scope of expressive freedom is left for us to determine.

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Announcing the ylj academic summer grants program, announcing the editors of volume 134.

United States v. Stevens, 599 U.S. 460, 470 (2010); see also District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (“[T]he First [Amendment] . . . is the very product of an interest balancing by the people.”).

1  Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech § 1:11 (2016).

See, e.g. , Wendell Bird, Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign Against Dissent 15-30 (2016); Leonard W. Levy, Emergence of a Free Press 170-71 (1985); Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions , 102 Yale L.J. 907, 919 & n.39 (1993); Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression , 78 B.U. L. Rev . 1275, 1289, 1292 (1998); Leonard W. Levy, On the Origins of the Free Press Clause , 32 UCLA L. Rev. 177, 180, 204 (1984); Melville B. Nimmer, Introduction—Is Freedom of the Press a Redundancy: What Does It Add to Freedom of Speech? , 26 Hastings L.J. 639, 640-41 (1975); Eugene Volokh, Symbolic Expression and the Original Meaning of the First Amendment , 97 Geo. L.J. 1057, 1079-83 (2009). The term “freedom of expression” was rarely used in the eighteenth century but is used here for simplicity. But see Answer of the Senate of Pennsylvania to Governor Mifflin’s Speech , Dunlap & Claypoole’s Am. Daily Advertiser (Philadelphia), Dec. 14, 1795, at 3 (“The communication of sentiment, with temper and decency, is a right which never should be impaired: Freedom of expression will only be abused by those who wish to conceal, or pervert, the truth.”).

See, e.g. , Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live By 168 (2012); Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 46-47 (1985); Richard A. Primus, The American Language of Rights 73 & n.44 (1999); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 292 (1996).

See, e.g. , George Anastaplo, Reflections on Freedom of Speech and the First Amendment 66 (2007); Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People 34-37 (1960); Akhil Reed Amar, Intratextualism , 112 Harv. L. Rev. 747, 815 (1999).

David A. Anderson, The Origins of the Press Clause , 30 UCLA L. Rev . 455, 487 (1983); see also Stewart Jay, The Creation of the First Amendment Right to Free Expression: From the Eighteenth Century to the Mid-Twentieth Century , 34 Wm. Mitchell L. Rev. 773, 793 (2008) (agreeing with Anderson); Lawrence Rosenthal, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech , 86 Ind. L.J. 1, 17 (2011) (same).

Erwin Chemerinsky, Constitutional Law 1198 (4th ed. 2013); see also, e.g. , Akhil Reed Amar, The Constitution Today: Timeless Lessons for the Issues of Our Era 7 (2016) (“The Sedition Act of 1798 was clearly unconstitutional . . . .”).

Scholars who emphasize the indeterminacy of original meaning typically highlight the clashing views over sedition. See, e.g. , Smolla, supra note 2, at § 1:11. By contrast, those who take sides often argue that the opposing view was not prevalent until the late 1790s. Compare Levy, supra note 3 , at xii (“[T]he theory of freedom of political expression remained quite narrow until 1798 . . . .”), with Anderson, supra note 6 , at 521 (“The Federalists who sought to prevent criticism of government by passing the Sedition Act were not the Framers, nor did they share the Framers’ views.”). For other key works, see Bird, supra note 3 ; Phillip I. Blumberg, Repressive Jurisprudence in the Early American Republic: The First Amendment and the Legacy of English Law (2010); Walter Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal , 1970 Sup. Ct. Rev . 109; David S. Bogen, The Origins of Freedom of Speech and Press , 42 Md. L. Rev . 429 (1983); Hamburger, supra note 3 ; Philip B. Kurland, The Original Understanding of the Freedom of the Press Provision of the First Amendment , 55 Miss. L.J. 225 (1985); William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression , 84 Colum. L. Rev . 91 (1984); David M. Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History , 37 Stan. L. Rev. 795 (1985); and Stephen A. Smith, The Origins of the Free Speech Clause , 29 Free Speech Y.B. 48 (1991).

Geoffrey R. Stone, The Story of the Sedition Act of 1798: “The Reign of Witches , ” in First Amendment Stories 13, 23 (Richard W. Garnett & Andrew Koppelman eds., 2012). For others who emphasize a lack of consensus at the Founding, see, for example, David L. Lange & H. Jefferson Powell, No Law: Intellectual Property in the Image of an Absolute First Amendment 210 (2009); Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel 70 (1986); Jack M. Balkin, Nine Perspectives on Living Originalism, 2012 U. Ill. L. Rev . 815, 837; Robert H. Bork, Neutral Principles and Some First Amendment Problems , 47 Ind. L.J. 1, 22 (1971); Saul Cornell, Meaning and Understanding in the History of Constitutional Ideas: The Intellectual History Alternative to Originalism , 82 Fordham L. Rev . 721, 748-54 (2013); and Saul Cornell, The People’s Constitution vs. The Lawyer’s Constitution: Popular Constitutionalism and the Original Debate over Originalism , 23 Yale J.L. & Human . 295, 326-34 (2011) [hereinafter Cornell, The People’s Constitution vs. The Lawyer’s Constitution ].

Jonathan Gienapp, Historicism and Holism: Failures of Originalist Translation , 84 Fordham L. Rev . 935, 942 (2015).

4 William Blackstone, Commentaries * 152.

See Wendell Bird, Liberties of Press and Speech: ‘Evidetestnce Does Not Exist To Contradict the . . . Blackstonian Sense’ in Late 18th Century England? , 36 Oxford J. Legal Stud. 1 (2016).

The intellectual foundation of this language was social-contract theory. See Jud Campbell, Republicanism and Natural Rights at the Founding , 32 Const. Comment. 85, 87 (2017 ) (reviewing Randy E. Barnett, Our Republican Constitution: Securing The Liberty And Sovereignty of We the People (2016)). Founding Era discussions of social-contract theory and natural rights were common. See, e.g. , John Adams, A Defence of the Constitutions of Government of the United States of America 6 (Philadelphia, Hall & Sellers 1787); 1 William Blackstone, Commentaries * 47; Alexander Hamilton , The Farmer Refuted (1775) , reprinted in 1 The Papers of Alexander Hamilton 81, 88 (Harold C. Syrett ed., 1961); James Madison, Essay on Sovereignty (1835), in 9 The Writings of James Madison 568, 570 (Gaillard Hunt ed., 1910); Gouverneur Morris, Political Enquiries (1776), in To Secure the Blessings of Liberty: Selected Writings of Gouverneur Morris 5, 9 (J. Jackson Barlow ed., 2012); 1 Zephaniah Swift, A System of the Laws of the State of Connecticut 16 (Windham, John Byrne 1795); Richard Wooddeson, Elements of Jurisprudence: Treated of in the Preliminary Part of a Course of Lectures on the Laws of England 22 (London, T. Payne & Son 1783).

See Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress of the United States of America 811, 822 (Charlene Bangs Bickford et al. eds., 1992) [hereinafter Documentary History of the First Federal Congress] ; Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 The Papers of Thomas Jefferson 131, 132 (Julian P. Boyd ed., 1971); An Old Whig IV , Indep. Gazetteer ( Philadelphia), Oct. 27, 1787, reprinted in 13 The Documentary History of the Ratification of the Constitution 497, 501 (John P. Kaminski & Gaspare J. Saladino eds., 1981) [hereinafter Documentary History of the Ratification] . The Founders sometimes referred to positive rights as adventitious rights or social rights. See The Impartial Examiner 1 , Va. Indep. Chron. ( Richmond ) , Feb. 20, 1788, reprinted in 8  Documentary History of the Ratification, supra , at 387, 390 (1988); [George Logan], Letters Addressed to the Yeomanry of the United States . . . 39 (Philadelphia, Eleazer Oswald 1791); Philanthropos , Newport Herald , June 17, 1790, reprinted in 26 Documentary History of the Ratification , supra , at 1051, 1051 (John P. Kaminski et al. eds., 2013).

Common Sense [Thomas Paine], Candid and Critical Remarks on Letter 1, Signed Ludlow , Pa. J. & Wkly. Advertiser , June 4, 1777, at 1; see also 1 Thomas Rutherford, Institutes of Natural Law 36 (Cambridge, J. Bentham 1754) (“Another division of our rights is into natural and adventitious. Those are called natural rights, which belong to a man . . . originally, without the intervention of any human act.”); Hamburger, supra note 3 , at 919 (“[Americans] understood natural liberty to be the freedom an individual could enjoy as a human in the absence of government.”).

See Campbell, supra note 13, at 92-98.

See id. at 96-98.

See Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 10 (1969); Bernadette Meyler, Towards a Common Law Originalism , 59 Stan. L. Rev . 551, 581 (2006).

See infra Section II.D.

See Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 296-97, 306. As Cornell notes, “the conflict over legal interpretation . . . exist[ed] along a spectrum in which elite culture shaded gradually into a more popular plebian culture.” Id. at 309.

Id. at 306 (quoting [ Benjamin Austin ], Honestus, Observations on the Pernicious Practice of the Law 20 (Boston, Adams & Nourse 1786)).

Scholars have widely noted how methodological disagreements among the Founders can complicate efforts to recover original meanings. See, e.g. , id. at 296-98; Larry Kramer, Two (More) Problems with Originalism , 31 Harv. J.L. & Pub. Pol’y 907, 912-13 (2008); Caleb Nelson, Originalism and Interpretive Conventions , 70 U. Chi. L. Rev . 519, 555-56, 561, 571-73 (2003).

See, e.g. , Alexander Addison, A Charge to the Grand Juries of the County Courts of the Fifth Circuit of the State of Pennsylvania 13 (Vergennes, Samuel Chipman 1799) (arguing that sedition leads to the “greatest of all plagues, the corruption of public opinion”).

See, e.g. , John Thomson , An Enquiry, Concerning the Liberty, and Licentiousness of the Press, and the Uncountroulable Nature of the Human Mind 83 (New York, Johnson & Stryker 1801) (describing the “laws of society”—akin to the proverbial marketplace of ideas—as “fully sufficient to the purpose” of handling malicious falsehoods); Tunis Wortman, A Treatise, Concerning Political Enquiry, and the Liberty of the Press 170 (New York, George Forman 1800) (“Public prosecutions for libels are . . . more dangerous to Society than the misrepresentation which they are intended to punish.”). This view developed among English radicals, whose writings circulated in America. See, e.g. , Richard Price, Observations on the Importance of the American Revolution, and the Means of Making It a Benefit to the World 25 (London, Barlow & Babcock 1784) (arguing that the “evils” of granting civil authority to regulate speech outweigh the benefits); James Burgh, Of the Liberty of Speech and Writing on Political Subjects , in 3 Political Disquisitions 246, 254 (London, Edward and Charles Dilly 1775) (“For if you punish the slanderer , you deter the fair inquirer .”).

Readers need not accept a general distinction between meanings and expected applications in order to recognize my point, which is simply that individuals could simultaneously agree that speaking, writing, and printing were natural rights regulable in the public interest and disagree about whether particular governmental restrictions of speaking and printing promoted the public good. For arguments in favor of a general distinction between meanings and expected applications, see Christopher R. Green, Originalism and the Sense-Reference Distinction , 50 St. Louis U. L.J. 555, 559 (2006); and Keith E. Whittington, Originalism: A Critical Introduction , 82 Fordham L. Rev. 375, 383 (2013).

See infra Section II.A.

See infra Section II.B.

See infra Section II.C.

See, e.g. , Reed v. Town of Gilbert, 135 S. Ct. 2218, 2229 (2015); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 128 (1993) (Kennedy, J., concurring).

United States v. Stevens, 559 U.S. 460, 468-71 (2010).

Id. at 470; see also United States v. Alvarez, 132 S. Ct. 2537, 2544, 2547 (2012) (plurality opinion) (summarizing the same idea, with application to false statements).

McCutcheon v. FEC, 134 S. Ct. 1434, 1449 (2014).

Compare Zechariah Chafee Jr., Freedom of Speech 17-24 (1920) ( insisting that the First Amendment was designed to bar seditious libel prosecutions), with Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 2-3 (1960) ( arguing that historical evidence “points strongly in support” of the conclusion that the First Amendment “left the law of seditious libel in force”) , and Rabban, supra note 8, at 796 ( arguing that Levy’s focus on seditious libel led him to overlook genuine and growing support among the Founders for a greater degree of expressive freedom).

See, e.g. , Vikram Amar, Introduction to The First Amendment Freedom of Speech: Its Constitutional History and the Contemporary Debate 13, 13 (Vikram David Amar ed., 2009); Genevieve Lakier, The Invention of Low-Value Speech , 128 Harv. L. Rev. 2166, 2180-81 (2015); Marc Lendler, “Equally Proper at All Times and at All Times Necessary”: Civility, Bad Tendency, and the Sedition Act , 24 J. Early Republic 419, 426 n.28 (2004).

See Bird , supra note 3, at 77; Lucas A. Powe, Jr., The Fourth Estate and the Constitution: Freedom of the Press in America 47-48 (1991); Jay S. Bybee, Taking Liberties with the First Amendment: Congress, Section 5, and the Religious Freedom Restoration Act , 48 Vand. L. Rev . 1539, 1556, 1567-71 (1995); Kurt T. Lash, The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment , 88 Nw. U. L. Rev . 1106, 1111-14 (1994); Mayton, supra note 8, at 97, 119.

See supra note 4 (collecting sources).

See supra notes 2 and 9 and accompanying text.

See Hamburger, supra note 3, at 908-11.

Hamburger’s only engagement with this issue is an unilluminating footnote:

[N]atural law was not necessarily the only indication of what was an abridgement of the constitutional right, because a constitution might enumerate a natural right but qualify or supplement its protection of the right. The First Amendment right of free speech and press, for example, was understood to preclude publication censorship . . . . [T]his preference for postpublication restraints was highly compatible with the notion of a physical natural right, but it was not claimed to be derived from natural rights analysis.

Id. at 954 n.130. In a similar vein, David Bogen shows that many Founders viewed the freedom of speech as a natural right, but he offers little account of what that meant. See Bogen, supra note 8, at 453 (“[N]atural rights theory . . . failed to mark the line between protected liberty and punishable license.”). Like Hamburger, Bogen does not explore the place of customary positive rights within a natural-rights framework. See id. at 450-53.

See, e.g. , Thomas B. McAffee, The Bill of Rights, Social Contract Theory, and the Rights “Retained” by the People , 16 S. Ill. U. L.J. 267, 278-79 (1992); see also Levy , supra note 3, at 225 (“The Framers believed that . . . no provision of the Constitution authorized the government to act on any natural rights.”); cf. Heyman, supra note 3, at 1282 (classifying freedom of thought as a right “not subject to legislative regulation for the public good . . . [but] nevertheless limited by the rights of others”). For others who interpret the First Amendment as a categorical ban on federal regulations of expression, see supra note 36 (collecting sources).

See infra notes 114-118 and accompanying text.

See infra notes 290-294 and accompanying text.

See, e.g. , Patterson v. Colorado, 205 U.S. 454, 462 (1907) (providing that the First Amendment prohibits prior restraints on speech but permits “the subsequent punishment of such [speech] as may be deemed contrary to the public welfare”). See generally Crowley v. Christensen, 137 U.S. 86, 89 (1890) (“[T]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community.”); Victoria F. Nourse, A Tale of Two Lochners : The Untold History of Substantive Due Process and the Idea of Fundamental Rights , 97 Calif. L. Rev. 751, 752 (2009) (“Today, fundamental rights trump the general welfare, whereas in 1905, under the police power of the state, the general welfare trumped rights.”).

See, e.g. , N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette , Jan. 27, 1790, at 2 (statement of Rep. Rufus King) (“The liberty of uttering our sentiments and giving publicity of our thoughts, might be supposed an evil were it not well guarded against by wholesome laws, which prevents any one man from injuring another.”).

See infra notes 188-189 and accompanying text.

Because of the evidence available, this Article relies on the views of Founding Era elites. References to the Founders, Americans, and so forth, should be read accordingly. Of course, this binary distinction between “elites” and “non-elites” is stylized. See Saul Cornell, Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard , 29 Const. Comment . 383, 388 (2014).

Although “large numbers of Americans spoke about government, liberty and constitutional law on the basis of some shared assumptions about natural rights and the state of nature,” Hamburger, supra note 3, at 915, these speakers may not be representative of the entire Founding generation, see id. at 916.

Perhaps those unfamiliar with natural-rights reasoning would have understood the term as the practical freedom that speakers and publishers exercised at the time of the First Amendment’s ratification—a meaning that would prevent the government from instituting any new restrictions of speech or the press. Without evidence, one scholar posited this idea. See Leonard W. Levy, The Legacy Reexamined , 37 Stan. L. Rev. 767, 769 (1985); cf. James Iredell’s Charge to the Grand Jury of the Circuit Court for the District of Pennsylvania , Claypoole’s Am. Daily Advertiser (Philadelphia), Apr. 11, 1799, reprinted in 3  The Documentary History of the Supreme Court of the United States, 1789-1800 , at 332, 347 (Maeva Marcus et al. eds., 1990) [hereinafter Iredell] (“What might be deemed the Freedom of the Press, if it had been a new subject, and never before in discussion, might indeed admit of some controversy.”). Or perhaps Americans unfamiliar with social-contract theory would have interpreted the First Amendment in light of the Speech and Debate Clause. Yet again, however, historical evidence does not support that view. See infra notes 275-281 and accompanying text.

See infra Part IV. For this reason, this Article cannot refute interpretive arguments based on other methodologies.

Readers may refer to any Supreme Court opinion that mentions history. To be sure, Justice Scalia once asserted that the Constitution’s original meaning “excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.” District of Columbia v. Heller, 554 U.S. 570, 577 (2008). But the Court never demonstrates that elite sources reflect how “ordinary citizens” would have understood the Constitution’s words and phrases, and it regularly relies on highly technical legal sources that were surely unfamiliar to most ordinary citizens. Cf. Lawrence B. Solum, District of Columbia v. Heller and Originalism , 103 Nw. U. L. Rev . 923, 970 (2009) (offering an originalist perspective on the “public meaning” of terms of art). Of course, limiting the relevant public to voters might narrow the linguistic gap between the public and elites, see Mark Tushnet, Heller and the New Originalism , 69 Ohio St. L.J . 609, 611-12 (2008), but that limitation is unwarranted if the relevant public includes non-voting members of the body politic.

See, e.g. , Larry D. Kramer, Madison’s Audience , 112 Harv. L. Rev . 611, 676 (1999); Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion , 103 Harv. L. Rev . 1409, 1415 (1990).

See, e.g. , Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience , 117 Harv. L. Rev . 1765, 1767 nn. 6-8, 1768 (2004) (listing several theories).

See, e.g. , Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution 199 (1996) (“The First Amendment . . . cannot be applied to concrete cases except by assigning some overall point or purpose to the amendment’s abstract guarantee of ‘freedom of speech or of the press.’”).

See Meiklejohn , supra note 5; Cass R. Sunstein, Democracy and the Problem of Free Speech (1993); Ashutosh Bhagwat, The Democratic First Amendment , 110 Nw. U. L. Rev. 1097 (2016 ).

See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Eugene Volokh, In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection , 97 Va. L. Rev. 595 (2011).

See Martin H. Redish, The Value of Free Speech , 130 U. Pa. L. Rev . 591, 593 (1982) (describing the “one true value” of free speech as “individual self-realization”).

In particular, many scholars have noted that preserving republican government was the primary objective for many proponents of speech and press freedoms. See Bhagwat, supra note 55, at 1102 (“[A] broad consensus has emerged over the past half-century regarding the fundamental reason why the Constitution protects free speech: to advance democratic self-governance.”). That account of the Founders’ motives is certainly true. But one goal of this Article is to show that the meanings of speech and press freedoms, as concepts, were not defined by or limited to concerns about preserving republican government.

Gordon S. Wood, The Creative Imagination of Bernard Bailyn , in The Transformation of Early American History: Society, Authority, and Ideology 16, 46 (James A. Henretta et al. eds., 1991).

See G. Edward White, Intellectual History and Constitutional Decision Making , 101 Va. L. Rev . 1165, 1176-77 (2015). American judges, for instance, unanimously upheld sedition prosecutions. See Blumberg , supra note 8, at 145. For twentieth-century developments, see, for example, Lakier, supra note 35; and G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America , 95 Mich. L. Rev . 299 (1996).

See Michael W. McConnell, Time, Institutions, and Interpretation , 95 B.U. L. Rev. 1745, 1777 (2015); John O. McGinnis, The Duty of Clarity , 84 Geo. Wash. L. Rev. 843, 843 (2016).

Plenty of originalists value precedent. See, e.g. , William Baude, Is Originalism Our Law? , 115 Colum. L. Rev . 2349, 2358-59 (2015); see also infra note 307 (collecting sources).

491 U.S. 397 (1989).

530 U.S. 640 (2000).

558 U.S. 310 (2010).

562 U.S. 443 (2011).

See, e.g. , Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 132-49, 255-71 (rev. ed. 2014). This view is ahistorical, see Campbell, supra note 13, at 105-08, but that does not make it “wrong.” Modern constitutional practice ultimately has to be based on normative grounds (or some other assessment of what counts as our law), which may call for only a limited form of historical inquiry. See Whittington, supra note 25, at 400-04 (discussing the relationship between originalism and judicial review).

See, e.g. , Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine , 63 U. Chi. L. Rev. 413, 414 (1996); David A. Strauss, The Ubiquity of Prophylactic Rules , 55 U. Chi. L. Rev . 190, 196-202 (1988).

For different formulations of this two-step process of constitutional adjudication, see, for example, Mitchell N. Berman, Constitutional Decision Rules , 90 Va. L. Rev. 1 (2004); Richard H. Fallon, Jr., Foreword: Implementing the Constitution , 111 Harv. L. Rev . 54 (1997); and Lawrence B. Solum, The Interpretation-Construction Distinction , 27 Const. Comment. 95 (2010).

James Madison, Notes for Speech in Congress (June 8, 1789), in 12 The Papers of James Madison 193, 194 (Charles F. Hobson & Robert A. Rutland eds., 1979).

Thomas Hayter, An Essay on the Liberty of the Press Chiefly as it Respects Personal Slander 18 (London, J. Raymond 1755); see also Freeman’s J.: or, The North-Am. Intelligencer (Philadelphia), Nov. 16, 1785, at 3 (reprinting this passage); Pa. Packet (Philadelphia), Nov. 12, 1785, at 2 (same); Va. Gazette (Williamsburg), May 18, 1776, at 1 (same). For other sources that identify speaking, writing, and publishing as retained natural rights, see, for example, 8 Annals of Cong . 2,148 (1798) (statement of Rep. Harrison Gray Otis) (mentioning the “liberty of writing, publishing, and speaking, one’s thoughts, under the condition of being answerable to the injured party”); 4 Annals of Cong . 918 (1794) (statement of Rep. William Giles) (referring to the “the inalienable privilege of thinking, of speaking, of writing, and of printing”); Congressional Debates (Jan. 21, 1791) (statement of Rep. Fisher Ames), in 14 Documentary History of the First Federal Congress , supra note 14, at 342 (William Charles DiGiacomantonio et al. eds., 1995) (describing the freedom of speech as an “unalienable right”); id. at 340 (statement of Rep. John Vining) (“[N]o law can divest” individuals of the right “of speaking and writing their minds . . . .”); Proposal by [Roger] Sherman to House Committee of Eleven (July 21-28, 1789), in The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 83 (Neil H. Cogan ed., 1997) [hereinafter Complete Bill of Rights] (“Speaking, writing and publishing” are among “certain natural rights which are retained”); Resolution of the Virginia House of Delegates, Va. Gazette, & Gen. Advertiser (Richmond), Jan. 3, 1798, at 2 (referring to the “natural right of speaking and writing freely”); 2 Joseph Priestley, Lectures on History, and General Policy 47 (Philadelphia, P. Byrne 1803) (“[I]n a state of society, every man retain[s] his natural powers of speaking, writing, and publishing his sentiments on all subjects . . . .”); Freeborn American , Bos. Gazette & Country J., Mar. 9, 1767, reprinted in Freedom of the Press from Zenger to Jefferson 95, 95 (Leonard W. Levy ed., 1996) [ hereinafter Freedom of the Press] (“Man, in a state of nature, has undoubtedly a right to speak and act without controul.”); Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 676, 678 (1958) (“[R]ights which it is useless to surrender to the government” include “the rights of thinking, and publishing our thoughts by speaking or writing . . . . ”); and Letter from Thomas Paine to Thomas Jefferson (Mar. 1788), in 13 The Papers of Thomas Jefferson, supra note 14 , at 4, 5 (1956) (“[N]atural rights” include “the rights of thinking, speaking, forming and giving opinions . . . .”). The understanding of speaking, writing, and publishing as natural rights was articulated in seminal discussions about speech and press freedoms during the Zenger controversy. See Argument of Andrew Hamilton, in Freedom of the Press , supra , at 43, 54 (“I beg Leave to insist, That the Right of complaining or remonstrating is natural; And the Restraint upon this natural Right is the Law only, and that those Restraints can only extend to what is false  . . . .”); N.Y. Weekly J . (Nov. 1733), reprinted in Freedom of the Press, supra , at 30 (“No Nation Antient or Modern ever lost the Liberty of freely Speaking, Writing, or Publishing their Sentiments, but forthwith lost their Liberty in general and became Slaves.”).

For instance, one scholar insists that confining regulations of expression to lawful restraints would have been “nothing but a tautology.” Bird , supra note 3, at 11. But this reflects an anachronistic view of freedom. Confining any restraints of natural liberty to known laws passed with the consent of the people and in pursuit of the public good was, according to many eighteenth-century thinkers, the very essence of freedom. See John Phillip Reid, The Ancient Constitution and the Origins of Anglo-American Liberty 38-39 (2005); see, e.g. , The Democratic Society of the City of New-York, to Their Brethren the Citizens of the United States (Jan. 14, 1795), in The Democratic-Republican Societies, 1790-1800: A Documentary Sourcebook of Constitutions, Declarations, Addresses, Resolutions, and Toasts 192, 195 (Philip S. Foner ed., 1976) [hereinafter Democratic-Republican Societies] (“ Civil Liberty is the right of the citizen freely to dispose of his actions subject only to the restraint of the laws . . . . Restraint commences . . . where the liberty of one individual is incompatible with the safety, or happiness of another—it is dictated by justice, and constitutes law.”).

See, e.g. , A Citizen of New-York [John Jay], An Address to the People of the State of New York (Apr. 15, 1788), in 20 Documentary History of the Ratification, supra note 14, at 922, 933 (John P. Kaminski et al. eds., 2004).

See, e.g. , Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 24, 1788) (statement of James Iredell), reprinted in 4 The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787, at 10-11 (Jonathan Elliot ed., 2d ed. 1836) [hereinafter Debates in the Several State Conventions ]; The Federalist No. 84 (Alexander Hamilton); Remarker, Indep. Chron. , Dec. 27, 1787, reprinted in 5 Documentary History of the Ratification, supra note 14, at 527, 529-30 (John P. Kaminski et al. eds., 1998); see also Gordon S. Wood, The History of Rights in Early America , in The Nature of Rights at the American Founding and Beyond 233, 236-42 (Barry Alan Shain ed., 2007) [hereinafter The Nature of Rights] (describing the development of this view in England and America).

See Herbert J. Storing, What the Anti-Federalists Were For 69-70 (Murray Dry ed., 1981); Jack N. Rakove, The Dilemma of Declaring Rights , in The Nature of Rights , supra note 76, at 181, 193-94.

Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 The Papers of James Madison, supra note 72, at 350, 351 (Robert A. Rutland et al. eds., 1973).

Letter from Samuel Chase to Richard Henry Lee (May 16, 1789), in 15 Documentary History of the First Federal Congress, supra note 14, at 565, 565 (Charles Bangs Bickford et al. eds., 2004); see also The Massachusetts Convention (Jan. 23, 1788) (statement of Samuel Thompson), in 6 Documentary History of the Ratification, supra note 14, at 1312, 1317 (John P. Kaminski et al. eds., 2000) (“[W]here is the bill of rights which shall check the power of this Congress, which shall say, thus far shall ye come and no farther. ”).

Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 The Papers of Thomas Jefferson, supra note 14, at 659, 659 (1958).

See Campbell, supra note 13, at 107-08; see also infra notes 290-294 and accompanying text.

Although not explored in this Article, other parts of the First Amendment also protected fundamental positive rights that furthered the natural right of expressive freedom. The ancient right to petition, for instance, was a procedural device through which individuals and groups could seek redress of grievances with accompanying “protect[ion] from formal political retaliation by governmental authorities.” Gregory A. Mark, The Vestigial Constitution: The History and Significance of the Right To Petition , 66 Fordham L. Rev . 2153, 2202 (1998). The right of peaceable assembly similarly barred prosecutions for peaceable public meetings, although its broader implications were contested. See Saul Cornell, “To Assemble Together for Their Common Good”: History, Ethnography, and the Original Meanings of the Rights of Assembly and Speech , 84 Fordham L. Rev . 915, 928-30 (2015); see also J ohn D. Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 21-29 (2012) (discussing the history of the freedom of assembly in the Founding Era).

See Campbell, supra note 13, at 87.

Id. at 87-88.

See, e.g. , Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact 74-75 (1974); John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights 88-90 (1986); James Wilson, Of the Natural Rights of Individuals , in 2 Collected Works of James Wilson 1053, 1055-56 (Kermit L. Hall & Mark David Hall eds., 2007).

When Federalists came under fire for not enumerating rights, however, they mercilessly mocked their Anti-Federalist opponents by pointing out the limitless breadth of natural liberty. See Philip A. Hamburger, Trivial Rights , 70 Notre Dame L. Rev . 1, 20-30 (1994).

See infra notes 275-281 and accompanying text.

Anderson, supra note 6, at 487 (citing Levy , supra note 34, at 5-6); accord Jay, supra note 6, at 793; Rosenthal, supra note 6, at 17.

See supra notes 14-15, 83-86 and accompanying text.

See supra note 73 and infra notes 93-98 (collecting sources).

Pa. Const . of 1776, art. 12; Vt. Const. of 1777, ch. 1, art. 14.

Proposal by Sherman to House Committee of Eleven, July 21-28, 1789, in Complete Bill of Rights, supra note 73, at 83.

Freeborn American , supra note 73, at 95.

Alexander Addison, Analysis of the Report of the Committee of the Virginia Assembly, on the Proceedings of Sundry of the Other States in Answer to their Resolutions 44 (Philadelphia, Zachariah Poulson Jr. 1800).

John Taylor, An Inquiry into the Principles and Policy of the Government of the United States 473 (Fredericksburg, Green & Cady 1814).

Richard Price, Observations on the Importance of the American Revolution, and the Means of Making It a Benefit to the World 21-22 (London, T. Cadell 1784).

Eteocles, An Essay on the Freedom of Speech , Md. Gazette (Annapolis), Nov. 24, 1780, at 180.

Addison, supra note 23, at 4.

See, e.g. , James Alexander, Letter to the Editor, Pa. Gazette (Philadelphia), Nov. 24, 1737, reprinted in Freedom of the Press , supra note 73, at 62, 66 (referencing “freedom of speech and liberty of the press” as “natural rights”).

Hayter , supra note 73, at 18; see also Addison, supra note 23, at 4 (“We communicate our sentiments by words spoken, written, or printed, or by pictures or other signs.”); William Bollan, The Freedom of Speech and Writing upon Public Affairs, Considered 3-4 (London, S. Baker 1766) (discussing “speech and writing, or printing, a species of writing invented for the more expeditious multiplication of copies, both being modes of presenting to the eye what speech conveys to the ear”).

See, e.g. , 8 Annals of Cong. 2147-48 (1798) (statement of Rep. Otis) (distinguishing “the liberty of writing, publishing, and speaking” from “the freedom of the press”).

See 12 The Oxford English Dictionary 411 (J.A. Simpson & E.S.C. Weiner eds., 2d. ed. 1989); see also James Sullivan, Dissertation upon the Constitutional Freedom of the Press in the United States 10 (Boston, Joseph Nancrede 1801) (“The conventions of the states, and the Congress of the United States, use the word press as descriptive of the free communication of ideas and sentiments, by the art of printing.”). See generally Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today , 160 U. Pa. L. Rev. 459 (2012).

See, e.g. , 8 Annals of Cong. 2167-68 (1798) (statement of Rep. Harper) (decrying the “licentious abuse” of the liberty of the press, thus alluding to the natural-rights distinction between liberty and license —i.e., the abuse of liberty); Nathaniel Chipman, Sketches of the Principles of Government 152 (Rutland, Vt., J. Lyon 1793) (“Let there be no restraint upon the liberty of the Press, no check upon public or private discussion, but what is imposed by the manners, morals, taste, and good sense of the age.”).

The Craftsman No. 121 , in 3 The Craftsman 274, 274 (Caleb D’Anvers ed., London, R. Francklin 1731) (emphasis omitted); see American Intelligence , Indep. Gazetteer (Philadelphia), Jan. 5, 1789, at 3 (“Freedom of speech, which is nothing more than the freedom of press, is the great bulwark of liberty . . . .”). Other authors treated the freedom of speech as synonymous with “the liberty of individuals to communicate their thoughts to the public.” Of the Liberty of the Press and Elections , London Evening Post , Oct. 29, Nov. 9, Nov. 14, 1754, reprinted in 16 Scots Magazine 518-19 (1754). As this passage illustrates, “liberty” and “freedom” were typically used interchangeably.

See Hamburger, supra note 3, at 922-30.

See id. at 930 .

See David Hume , Of the Original Contract , in 2 Essays and Treatises on Several Subjects 287, 289-91 (London, A. Millar 1760); see also Rutherford, supra note 15, at 10 (“It is therefore the law of [man’s] nature, that he should live in society with others of his own species” and “should join with them in a common interest . . . as to labour with them for a general good.”).

Chipman, supra note 103, at 75.

Wilson, supra note 85, at 1056.

Id. at 1055-56 (emphasis added).

See Campbell, supra note 13, at 88; see, e.g. , John Locke, Second Treatise of Government §§ 96-97 (1690), reprinted in T wo Treatises of Government and a Letter Concerning Toleration 142 (Ian Shapiro ed., 2003); Theophilus Parsons , Essex Result , in Memoir of Theophilus Parsons 359, 366 (Boston, Ticknor & Fields 1861). Although typically cast in historical terms, the social contract was a theoretical idea used to frame the relationship between individuals and their government. See Campbell, supra note 13, at 87 n.10, 89 n.19.

Mass. Const . of 1780, pmbl.

See, e.g. , Adams , supra note 13, at 6; 1 William Blackstone, Commentaries * 52; Madison, supra note 13, at 570. In English and colonial thought, this agreement was often described as an “original contract” between the people and the monarch. See Reid , supra note 85, at 132-34. Founding Era writers sometimes merged the social contract and constitution . See Philip Hamburger, Law and Judicial Duty 98-99, 294 (2008) ; see, e.g. , Sullivan, supra note 102 , at 11 (“In the social compacts, which we denominate constitutions . . . .”). This conflation was common in the United States after independence, see Thad W. Tate, The Social Contract in America, 1774-1787: Revolutionary Theory as a Conservative Instrument , 22 Wm. & Mary Q . 375, 376 (1965), likely because the notion of an “original contract” between the people and a monarch became obsolete. But American constitutional theorists maintained the distinction between a social contract and a constitution. See, e.g. , Adams , supra note 13, at 6; Madison, supra note 13, at 570; see also 3 John Phillip Reid, Constitutional History of the American Revolution 114 (1991) (“American Whigs, in contrast to later historians, seldom compound[ed] or confuse[d] the two contracts.”); Reid , supra note 85, at 133-34 (noting eighteenth-century political writers’ distinctions between the social contract and the original contract).

See Campbell, supra note 13, at 92-94; see, e.g. , Joseph Priestley, An Essay on the First Principles of Government, and on the Nature of Political, Civil, and Religious Liberty 12-13 (2d ed., London, J. Johnson 1771) (“It must necessarily be understood, therefore, whether it be expressed or not, that all people live in society for their mutual advantage; so that the good and happiness of the members, that is the majority of the members of any state, is the great standard by which every thing relating to that state must finally be determined.”); John Witherspoon , Lectures on Moral Philosophy , in The Selected Writings of John Witherspoon 191 (Thomas P. Miller ed., 1990) (“[I]t is certain that the public good has always been the real aim of the people in general in forming and entering into any society.”). When Jefferson recommended five works on “the organization of society into civil government . . . according to the rights of nature,” Letter from Thomas Jefferson to John Norvell (June 11, 1807), in 5 The Writings of Thomas Jefferson 90, 90-91 (H. A. Washington ed., 1853), all of his recommendations prioritized the public good. See Chipman , supra note 103, at 174-75 (noting that retained natural rights “must be in a just compromise with the convenience and happiness of others, agreeably to the laws of social nature, and such combinations and regulations, as are clearly derived from those laws”); John Locke , Second Treatise of Government § 130 (1690), reprinted in John Locke , supra note 111 , at 156 (noting that individuals surrender “as much . . . natural Liberty . . . as the Good, Prosperity, and Safety of the Society shall require”); The Federalist No. 43, at 297 (James Madison) (Jacob E. Cooke ed., 1961) (“[T]he safety and happiness of society are the objects at which all political institutions aim.”); Priestley , supra , at 57 (“[A]ll claims of individuals inconsistent with the public good are absolutely null and void.”); Algernon Sidney, Discourses Concerning Government 255 (2d ed., London, J. Darby 1704) (stating that “the publick Good . . . is the end of all . . .  Government”) (emphasis added).

The Federalist No. 43, supra note 114, at 297 (James Madison); see also supra note 114 and accompanying text (discussing the public good).

See, e.g. , Alexander Hamilton, Opinion on the Constitutionality of the Bank , in 8 The Papers of Alexander Hamilton, supra note 13, at 91 (1965).

See, e.g. , The Federalist No. 37, supra note 114, at 239 (James Madison) (noting “the necessity of sacrificing private opinions and partial interests to the public good”); James Wilson, Of Citizens and Aliens, in 2 Collected Works of James Wilson, supra note 85, at 1038, 1043 (“By the will and by the interest of the community, every private will and every private interest must be bound and overruled.”); see also Campbell, supra note 13, at 93 n.41 (collecting other sources).

Campbell, supra note 13, at 94 (emphasis removed).

1 William Blackstone, Commentaries *125 (emphasis added); see also Hamburger, supra note 3, at 931 n.70 (collecting sources).

1 Zephaniah Swift, A Digest of the Laws of the State of Connecticut 15 (New Haven, S. Converse 1822); see also New York Ratification Convention Debates (June 25, 1788) (statement of Melancton Smith), in 22 Documentary History of the Ratification, supra note 14, at 1877, 1879 (John P. Kaminski et al. eds., 2008) (“What is government itself, but a restraint upon the natural rights of the people?”).

Parsons, supra note 111, at 366 (emphasis added).

The Federalist No. 84 , supra note 114, at 578 (Alexander Hamilton) (emphasis added); see also, e.g. , Massachusetts Ratification Convention Debates (Jan. 23, 1788) (statement of Theophilus Parsons), in 6 Documentary History of the Ratification, supra note 14, at 1324 (John P. Kaminski et al. eds., 2000) (“ [T]he people divest themselves of nothing.”).

This confusion is most apparent in the view that natural rights were categorical exclusions of regulatory authority. See sources cited supra note 41. For an illuminating effort to trace and unravel much of the confusion, see Dan Edelstein, Early-Modern Rights Regimes: A Genealogy of Revolutionary Rights , 3 Critical Analysis L. 221 (2016).

Chipman , supra note 103, at 117.

Letter from Thomas Jefferson to Francis W. Gilmer (June 7, 1816), in 15 Writings of Thomas Jefferson 23, 24 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1905).

For a discussion of how individuals could “retain” their natural rights in a social contract but consent to certain restrictions of those liberties under law, see Campbell, supra note 13, at 96-98.

Chipman , supra note 103, at 74.

Id. at 175 (emphasis added); see also Supplement to Max Farrand’s The Records of the Federal Convention of 1787 , at 183 (James H. Hutson ed., 1987) (“[W]e are not working on the natural rights of men not yet gathered into society, but upon those rights, modified by society . . . .” (quoting Nathaniel Chipman)) .

Chipman , supra note 103, at 175 (emphasis added).

James Wilson, On the History of Property , in 1 Collected Works of James Wilson, supra note 85, at 387.

Wilson, supra note 85, at 1056 (emphasis added).

See Addison, supra note 94, at 46 (“[T]he liberty of conscience cannot be modified, and the liberty of the press cannot be abridged, by authority of the United States.”); Thomas Jefferson, Jefferson’s Opinion on the Constitutionality of the Residence Bill (July 15, 1790), in 17 The Papers of Thomas Jefferson, supra note 14, at 194, 195-97 (1965) (using the phrase “abridged or modified,” and treating “modified” as synonymous with “regulated in [its] exercise by law”). In the late 1790s, some Republicans elided the inherent limits on expressive freedom imposed by natural law and social obligation, thus leading to the view that any regulation of expression was an abridgment of the freedom of speech. See St. George Tucker , View of the Constitution of the United States (1803), reprinted in View of the Constitution of the United States with Selected Writings 91, 386 (1999).

1 William Blackstone, Commentaries * 125.

Hayter , supra note 73, at 8, 18.

Freeborn American , supra note 73, at 95; see Tenax, To the People of Pennsylvania , The Freeman’s Journal: or, the North-American Intelligencer , Oct. 30, 1782, at 1; William Livingston, Of the Use, Abuse, and Liberty of the Press , The Indep. Reflector or Wkly. Essays on Sundry Important Subjects , Aug. 30, 1753, reprinted in Freedom of the Press , supra note 73, at 75, 79.

See, e.g. , Jacob Rush, The Nature of an Oath Stated and Explained , in Charges, and Extracts of Charges, on Moral and Religious Subjects 33, 44 (Philadelphia, 1804) (defending bans on profane swearing because it “lessen[s] that awe and reverence of the Supreme Being, which is one of the strongest guards against perjury; and consequently be in a high degree, injurious to society”). Others recognized that disrupting the “peace and order of society” was grounds for restricting publications, even without directly violating the rights of others. See Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 330 n.* (Pa. 1788); cf. Letter from Thomas Jefferson to James Madison (Aug. 28, 1789), in 15 The Papers of Thomas Jefferson, supra note 14, at 364, 367 (1958) (endorsing restrictions of speech “affecting the peace of the confederacy with foreign nations”). Occasionally, writers worried that a general declaration of press freedom might be construed to “extend to the justification of every possible publication .” America [Noah Webster], To the Dissenting Members of the Late Convention of Pennsylvania , N. Y. Daily Advertiser , Dec. 31, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 484, 487 (John P. Kaminski et al. eds., 2003); see also Hamburger, supra note 3, at 936 n.83; cf. N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette , Jan. 27, 1790, at 2 (statement of Rep. Samuel Jones) (“[H]e hoped that something might be done, if it were possible, to discriminate between the liberty and the licentiousness of the press. The amendment now proposed would be nugatory, as something similar thereto was already included in the constitution. Unless it went a little farther, it appeared to him as if this amendment would not leave it in the power of the legislature to make any law even to punish the injuries that might be done to individuals by the indiscriminate publication of libels.”). But these sources do not indicate that existing legal privileges actually extended that far or that the Founders wanted to extend them that far.

See Heather S. Nathans, Early American Theatre from the Revolution to Thomas Jefferson: Into the Hands of the People 37-70 (2003).

See, e.g. , Smith v. California, 361 U.S. 147, 157 (1959) (Black, J., concurring); Bird , supra note 3, at 27, 112, 461.

Priestley, supra note 114, at 57. Priestley emphasized that this inquiry depended on empirical assessments, not purely abstract reasoning. Id. at 58 .

Addison , supra note 23, at 10.

See, e.g. , 10 Annals of Cong . 925 (1801) (statement of Rep. Samuel Dana) (“[T]hough upon general principles, truth may be said to be an antidote to falsehood, truth does not always make its appearance in time to prevent the evil intended by the evil-disposed.”).

Sullivan , supra note 102, at 21-22. Sullivan, despite being a Republican, defended the constitutionality of the Sedition Act. See id.

10 Annals of Cong . 931 (1801) (statement of Rep. John Rutledge Jr.); see, e.g. , Addison, supra note 94, at 42-43.

E[lizabeth] P[riestley], On the Propriety and Expediency of Unlimited Enquiry , in Thomas Cooper, Political Essays 62, 62 (Thomas Cooper ed., Philadelphia, 2d ed. 1800). For a brief introduction to this essay, see Eugene Volokh, Elizabeth Ryland Priestley, Early American Author on Free Speech , 4 N .Y.U. J.L. & Liberty 382 (2009).

P[riestley], supra note 148, at 63.

Id. at 63-64; see also, e.g. , 10 Annals of Cong . 928 (1801) (statement of Rep. Benjamin Huger) (“[S]o nice and delicate were the shades of distinction between the licentiousness of the press, and a necessary freedom of discussion, that it was upon the whole better perhaps . . . to leave the measures of Government and its Administration entirely open to investigation and animadversion, without attempting to repress the eccentricities and exuberances of public discussion by even an ideal restraint.”).

See, e.g. , 10 Annals of Cong . 923 (1801) (statement of Rep. Joseph Nicholson).

To be sure, the doctrinal conclusions that Republicans reached were often categorical, but their pre-doctrinal understandings of expressive freedom usually were not. See, e.g. , George Hay, An Essay on the Liberty of the Press 27- 28 (Richmond, Samuel Pleasants, Jr. 1803) (concluding that publications on “matters of public concern” were immune from punishment because “the point at which freedom of enquiry ends and licentiousness begins, must remain forever unknown”). For a narrower interpretive argument that did take a categorical form, see infra Section II.B. Republicans in the late 1790s also wholly denied federal power over expression based on a novel interpretation of the First Amendment. See infra Section III.B; see also Jud Campbell, The Invention of First Amendment Federalism (Sept. 10, 2017) (unpublished draft) (on file with author).

Tenax, supra note 139, at 1, 2.

Id. Though unattributed, this language was drawn directly from Blackstone. See 4  William Blackstone, Commentaries *152 (“[T]he disseminating, or making public, of bad sentiments, destructive of the ends of society is the crime which society corrects.”).

Tenax, supra note 139, at 2; see also, e.g. , Sullivan , supra note 102, at 12 (drawing the same distinction between oral and written communication).

Confusingly, the Founders sometimes referred to inalienable rights in an entirely different sense—namely, rights that could not be surrendered to the control of a monarch. See Campbell, supra note 13, at 96-98.

Chipman , supra note 103, at 174.

See N. H. Const . of 1784, pt. 1, art. IV ; Parsons , supra note 111, at 366, 371; Witherspoon , supra note 114, at 405, 408; see also Jack N. Rakove, The Madisonian Theory of Rights , 31 Wm. & Mary L. Rev. 245, 260 (1990); Barry A. Shain, Rights Natural and Civil in the Declaration of Independence , in The Nature of Rights, supra note 76, at 116, 119.

See An Eastern Layman, To The Publick , Va. Gazette ( Williamsburg ) , Aug. 14, 1779, at 1.

4 Annals of Cong . 934 (1794) (statement of Rep. James Madison); see also, e.g. , Thomas Jefferson, A Bill for Establishing Religious Freedom (1779), in 2 The Papers of Thomas Jefferson, supra note 14, at 545, 546 (1950) (noting that “the opinions of men are not the object of civil government, nor under its jurisdiction”); Oliver Ellsworth, A Landholder No. 7 (Dec. 17, 1787), reprinted in 14 Documentary History of the Ratification, supra note 14, at 448, 451 (John P. Kaminski et al. eds., 1983) (“Civil government has no business to meddle with the private opinions of the people.”); Resolutions Adopted Upholding Freedom of Speech, Writing, and Publishing, Dec. 17, 1794, reprinted in Democratic-Republican Societies , supra note 74 , at 148, 148-49 (“[T]he freedom of opinion is a right inherent in nature, and never was intended to be surrendered to government.”).

See, e.g. , Thomas Cooper, A Treatise on the Law of Libel, at ix-x, xxii-xxiii (1830); Thomson , supra note 24, at 11, 13-14, 18-19.

John Locke, An Essay Concerning Human Understanding 119 (A.D. Woozley ed., Meridian Books 1969) (1690).

Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue: In Two Treatises 185 (Knud Haakonssen ed., Liberty Fund 2004) (1726).

James Madison, Memorial and Remonstrance against Religious Assessments , reprinted in 8 The Papers of James Madison , supra note 72, at 295, 299 (Robert A. Rutland et al. eds., 1973).

The Founders thus referred interchangeably to the freedom to express “sentiments,” see, for example, Pa. Const. of 1776, ch. 1, §  12, and “thoughts and opinions,” Pa. Const. of 1790, art. IX, §  7. To the extent that statements of opinion received broader protection than statements of fact , it was because of a duty to tell the truth. See Rutherford, supra note 15, at 295 (“[U]nlawful lyes [include] . . . not only such falshoods, as will directly injure a man, or hinder his innocent benefit; but all such falshoods likewise, as are inconsistent with that tacit consent to tell him the truth.”).

See, e.g. , Thomson , supra note 24, at 11-12 (“[M]en should be allowed to express those thoughts, with the same freedom that they arise. In other words—speak, or publish, whatever you believe to be truth .”); Albert Gallatin , The Speech of Albert Gallatin, a Representative from the County of Fayette, in the House of Representatives of the General Assembly of Pennsylvania , reprinted in 3 The Writings of Albert Gallatin 1, 6 (Henry Adams ed., 1879) (“Whether the opinion be right or wrong, as long as it is only an opinion, everybody has a right to express it.”). Alexander Addison drew a distinction between thought and speech , but he also, following Blackstone, limited his endorsement of speech restrictions to “bad sentiments.” See Addison , supra note 23, at 10 (“[L]iberty of private sentiment is still left; the disseminating or making public of bad sentiments, destructive of the ends of society, is the crime which society corrects.”).

Letter from Thomas Jefferson to David Humphreys (Mar. 18, 1789), in 14 The Papers of Thomas Jefferson , supra note 14, at 676, 678 (1958); see also Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 The Papers of Thomas Jefferson , supra note 14, at 131, 132 (noting “an universal and almost uncontroverted position in the several states, [is] that the purposes of society do not require a surrender of all our [natural] rights”). Notably, Jefferson did not categorically reject governmental authority to punish malevolent expression. See Letter from Thomas Jefferson to James Madison (July 31, 1788), in 13 The Papers of Thomas Jefferson , supra note 14, at 440, 442 (1956) (“A declaration that the federal government will never restrain the presses from printing any thing they please, will not take away the liability of the printers for false facts printed.”).

Congressional Debates (Jan. 21, 1791) (statement of Rep. John Vining), in 14 Documentary History of the First Federal Congress , supra note 14, at 340 (William Charles DiGiacomantonio et al. eds., 1995). This debate occurred before the First Amendment was formally ratified, but this fact evidently made little difference to the members of the First Congress. See also Congressional Debates (Feb. 11, 1790) (statement of Rep. Elias Boudinot), in 12 Documentary History of the First Federal Congress, supra note 14 , at 288 (Helen E. Veit et al. eds., 1994) (“[I]t has been so lately contended, and settled, that the people have a right to assemble and petition for redress of grievances.”).

Congressional Debates (Jan. 21, 1791) (statement of Rep. Fisher Ames), in 14 Documentary History of the First Federal Congress , supra note 14, at 342 (William Charles DiGiacomantonio et al. eds., 1995).

Id. Vining and Ames were opposing a proposal to prevent tax collectors “from interfering, either directly, or indirectly, in elections, further than giving their own votes, on penalty of forfeiting their offices.” Id. at 339 (statement of Rep. James Jackson). Some representatives enthusiastically supported the proposal, suggesting that it ought to be applied to other governmental officials, see id. at 340-41 (statement of Rep. Elbridge Gerry); id. at 341 (statement of Rep. John Laurance); id. at 342 (statement of Rep. Roger Sherman), thus protecting “the freedom of elections” from official interference, id. at 341 (statement of Rep. Michael Stone). The law did not prohibit speech, some proponents of the bill noted, because it merely placed a condition on office holding, see, e.g. , id. at 340 (statement of Rep. Egbert Benson), although Roger Sherman advocated a broader ban on “the arts of electioneering,” id. at 339-40 (statement of Rep. Roger Sherman). The House ended up rejecting the measure.

Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 325 (Pa. 1788); see also Addison, supra note 94, at 50 (“If a man willfully, maliciously, and with intent to defame, publish an opinion not supported by fact, it is an offense.”); James Wilson, Of the Nature of Crimes; and the Necessity and Proportion of Punishments , in 2 Collected Works of James Wilson, supra note 85, at 1087, 1090 (“The law of nature, it is admitted on all hands, measures crimes by the intention, and not by the event.”); Extract from a Charge . . . by the Honorable Thomas M’Kean, Chief Justice of the Supreme Court, with the unanimous approbation of the other Judges , in Pa. Packet (Philadelphia), Apr. 19, 1785, at 3 (“Men therefore have only to take care in their publications, that they are decent, candid and true, that they are for the purpose of reformation and not of defamation, and that they have an eye solely to the public good.”) .

8 Annals of Cong . 2097 (1798) (statement of Rep. John Allen).

Id. at 2098; see also id. (mentioning “liberty of the press and of opinion”).

10 Annals of Cong . 917 (1801) (statement of Rep. Jonas Platt); see, e.g. , H.R. Rep. No. 5-110, at 183 (1799); Addison, supra note 94, at 50; Iredell, supra note 49, at 348.

Stone, supra note 9, at 16. This point is widely recognized, though any effort to appreciate Federalist motives must at least grapple with the ongoing tumult in France. See Kathryn Preyer, United States v. Callender : Judge and Jury in a Republican Society , in Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789 , at 173, 187 (Maeva Marcus ed., 1992) (“Only present-mindedness or lack of imagination leads us to dismiss casually [Federalist] fears as paranoia.”). The Federalist effort to reauthorize the Sedition Act in 1801 further complicates this standard historical account. For a penetrating review of Federalist thought, see Lendler, supra note 35, at 419-25.

The Dissent of the Minority of the House of Representatives of the Commonwealth of Pennsylvania, from the Address to the President of the United States, Adopted by Said House, December, 1798 , at 4 (Philadelphia, 1799).

The Independant (Dec. 11, 1798), Times & Alexandria Advertiser , Dec. 15, 1798; see also 10 Annals of Cong . 922 (1801) (statement of Rep. Joseph Nicholson) (“It was and might be further urged, that the act was only aimed at false and malicious libels, tending to defame the Government. He granted it; but who were to be the judges?”).

Thomson , supra note 24, at 25. Later, Thomson made a broader argument against regulations of expression. See id. at 81-84; see also, e.g. , John Page, An Address to the Freeholders of Gloucester County 15 (Richmond, John Dixon 1799) (describing the Sedition Act as “ unjust as well as unconstitutional ” because it applied to those who criticized the government “patriotically, and conscientiously, and constitutionally”).

To be sure, Federalists generally preferred deferential rather than populist politics, and they abhorred the Democratic-Republican societies in the mid-1790s that claimed to speak on behalf of the people. But contrary to some portrayals, see James P. Martin, When Repression Is Democratic and Constitutional: The Federalist Theory of Representation and the Sedition Act of 1798 , 66 U. Chi. L. Rev . 117, 134-35 (1999), these ideas did not come close to a view that individuals could or should be barred from discussing public affairs or criticizing the government in good faith, see Richard Buel Jr., Securing the Revolution: Ideology in American Politics , 1789-1815, at 93-112, 128-35, 244-61 (1972); Richard Buel Jr., Freedom of the Press in Revolutionary America: The Evolution of Libertarianism, 1760-1820 , in The Press and the American Revolution 59, 89 (Bernard Bailyn & John B. Hench eds., 1981).

Addison, supra note 94, at 42; see also 10 Annals of Cong . 933 (1801) (statement of Rep. John Rutledge, Jr.) (“[E]very man has the privilege of expressing unreservedly whatever he thinks on political subjects.”).

The Trial of the Seven Bishops (1688) (opinion of Richard Allibond), in 12 A Complete Collection of State Trials 183, 428 (London, T.B. Howell ed., 1816). For English statements against this view, see, for example, Jean Louis de Lolme, The Constitution of England, or An Account of the English Government 280 (London, T. Spilsbury 1775) (“[T]he English constitution . . . has allotted to the people themselves the province of openly canvassing and arraigning the conduct of those who are invested with any branch of public authority; and . . . has thus delivered into the hands of the People at large, the exercise of the Censorial power.”); and [Thomas Gordon], Letter No. 15 (Feb. 4, 1720), in 1 John Trenchard & Thomas Gordon, Cato’s Letters: or, Essays on Liberty, Civil and Religious, and Other Important Subjects 110, 111 (Ronald Hamowy ed., 1995) (“That men ought to speak well of their governors, is true, while their governors deserve to be well spoken of; but to do publick mischief, without hearing of it, is only the prerogative and felicity of tyranny: A free people will be shewing that they are so, by their freedom of speech.”). For similar statements by Supreme Court justices, see John Blair’s Charge to the Grand Jury of the Circuit Court for the District of Delaware (Oct. 27, 1794), in 2 The Documentary History of the Supreme Court of the United States, 1789-1800, supra note 49 , at 485, 489 (Maeva Marcus ed., 1988) (“[W]hile men pay an external obedience to the laws, they have a right to think of them as they please, and even beyond this, to express their opinion decently, yet strongly, as a mean of obtaining an alteration . . . .”); Draft of John Jay’s Charge to the Grand Jury of the Circuit Court for the District of Virginia (before Apr. 22, 1793), in 2 Documentary History of the Supreme Court of the United States, 1789-1800 , supra note 49 , at 359, 364 (Maeva Marcus et al. eds., 1990) (“As free Citizens we have a Right to think and speake our Sentiments . . . in Terms . . . explicit plain and decorous.”); and Wilson, supra note 85 , at 1046 (stating that every “citizen under a free government has a right to think, to speak, to write, to print, and to publish freely, but with decency and truth, concerning publick men, publick bodies, and publick measures”). An enormous literature addresses the political controversies in the seventeenth and eighteenth centuries from which this freedom emerged. See, e.g. , Bogen, supra note 8 , at 442-44, 446; Mayton, supra note 8 , at 102-08; Michael E. Stevens, Legislative Privilege in Post-Revolutionary South Carolina , 46 Wm. & Mary Q. 71, 71-73 (1989). See generally Fredrick Seaton Siebert, Freedom of the Press in England 1476-1776: The Rise and Decline of Government Controls (1952).

For earlier discussions of the truth defense, see , for example, Letter from John Adams to William Cushing (Mar. 7, 1789), in Freedom of the Press , supra note 73, at 152, 153; Letter from John Marshall to Archibald Stuart (May 28, 1794), in 2  The Papers of John Marshall 267, 268 (Charles T. Cullen & Herbert A. Johnson eds., 1977). For a discussion of a famous controversy in New York over the truth defense, see Kate Elizabeth Brown, Rethinking People v. Croswell : Alexander Hamilton and the Nature and Scope of “Common Law” in the Early Republic , 32 L. & Hist. Rev . 611 (2014). Some judges thought that “a defendant could establish the truth of the publication only to show that he lacked the requisite malicious intent.” David Jenkins, The Sedition Act of 1798 and the Incorporation of Seditious Libel into First Amendment Jurisprudence , 45 Am. J. Legal Hist. 154, 192 (2001); see, e.g. , id. at 198-99 (describing the views of James Kent and Joseph Story).

H.R. Rep. No. 5-110, at 183 (1799); see 10 Annals of Cong . 92 0-21 (1801) (statement of Rep. Roger Griswold). Notably, some Federalists in January 1801 still held out hope that the presidential election would eventually swing their way after an impending deadlock between Jefferson and Burr. See James Roger Sharp, The Deadlocked Election of 1800: Jefferson, Burr, and the Union in the Balance 139-41 (2010).

Lakier, supra note 35, at 2180; see sources cited supra note 35. The few scholars who have noted possible differences between speech and press rights either have yet to illuminate their relationship, see, e.g. , Anderson, supra note 6, at 490 & n.211, or have insisted that the freedom of speech was derived from the legislative privilege of speech and debate, see sources cited supra note 4.

See, e.g. , 8 Annals of Cong. 2148 (1798) (statement of Rep. Harrison Gray Otis) (“[T]he liberty of the press is merely an exemption from all previous restraints.”).

See, e.g. , Addison, supra note 23, at 4 (“We communicate our sentiments by words spoken, written or printed, or by pictures or other signs.”); see also Volokh, supra note 3, at 1059 (“The equivalence of symbolic expression and verbal expression is consistent with the First Amendment’s original meaning.”). The fact that expressive and non-expressive aspects of natural liberty were both subject to regulation in the promotion of the public good negated the need for a distinction between “speech” and “conduct.” Cf. Frederick Schauer, Speech and “Speech”—Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language , 67 Geo. L.J. 899, 902-03 (1979) (“In order that the first amendment be applied effectively to carve out a category of activity for special protection, consideration must be given to the meaning of the word ‘speech’ . . . .”). Some Founders denounced theater bans, for instance, as obstructing “the natural right of every freeman to dispose of his time and money, according to his own taste and disposition, when not obnoxious to the real interests of society,” without any mention of the expressiveness of theater performance. To the Honorable the General Assembly of Pennsylvania, the Subscribers Being a Committee of the Dramatic Association . . . , Pa. Packet (Philadelphia), Feb. 17, 1789, at 3. Moreover, theater supporters emphasized the permissibility of governmental regulation to promote the public good. See, e.g. , Arguments in Favour of the Drama , Pa. Packet (Philadelphia), Feb. 17, 1789, at 3 (removing a ban on theater would still permit theaters to “be regulated,” because “every thing that has an immoral tendensy should be prohibited;—every exceptionable play, now extant, should be altered, or rejected, and none but those that have the good of mankind for their object, should be acted”). For an analysis of mid-1790s controversies about raising liberty poles, see Cornell , supra note 82, at 922-32.

See, e.g. , Hutcheson , supra note 163, at 185 (asking “[i]f the Alienation be within our natural Power” and whether it “may serve some valuable Purpose”).

An Old Whig IV , Indep. Gazetteer ( Philadelphia), Oct. 27, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 497, 501 (John P. Kaminski & Gaspare J. Saladino eds., 1981). Benjamin Rush lamented that combination, writing in 1777 that Pennsylvania’s “Bill of Rights has confounded natural and civil rights in such a manner as to produce endless confusion in society.” Benjamin Rush, Observations upon the Present Government of Pennsylvania , in Four Letters to the People of Pennsylvania 3 (Philadelphia, Styner & Cist 1777).

See Campbell, supra note 13, at 99.

Letter from Thomas Jefferson to Noah Webster, Jr. (Dec. 4, 1790), in 18 Papers of Thomas Jefferson, supra note 14, at 132.

Id. (listing “trial by jury, Habeas corpus laws, free presses” as positive rights); see also Federal Farmer No. 6 (Dec. 25, 1787), in 20 Documentary History of the Ratification , supra note 14, at 979, 983-84 (2004) (distinguishing natural rights from “constitutional or fundamental” rights); Federal Farmer No. 16 (Jan. 20, 1788), in 20 Documentary History of the Ratification , supra note 14, at 1051, 1059 (2004) (describing press freedom as a “fundamental right”). But see Heyman, supra note 3, at 1289 (citing Federal Farmer for the idea that press freedom is a natural right); McAffee, supra note 41, at 278-79 (same).

See sources cited supra note 3.

See supra Part II.

The Founders also often mentioned the freedom of the press as an obligation of printers to publish all items “conducive of general Utility,” without discrimination among writers. Livingston, supra note 139 , at 81. See generally Robert W. T. Martin, The Free and Open Press: The Founding of Democratic Press Liberty, 1640-1800 (2001) (presenting a scholarly account of the development of the concept of the free press). This usage was prevalent, but it related to the public norms applicable to printers, not limitations on governmental power, and it seems to have had no direct relationship to original understandings of the First Amendment.

Pa. Const . of 1776, art. 12 (“[T]he people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.”); see also Complete Bill of Rights , supra note 73, at 93 (presenting similar proposals of North Carolina, Rhode Island, Virginia, and the Pennsylvania minority). For a history of this provision, see Smith, supra note 8, at 58-63. Scholars have elided the distinct meanings of these clauses. See, e.g. , Levy, supra note 3, at 204; Volokh, supra note 3, at 1080-81. Other states opted for a simple declaration in favor of the liberty of the press. See Anderson, supra note 6, at 464-65, 538-41. Vermont, which had asserted its independence from New York, was the only other state to invoke the freedom of speech in its constitution. See Vt. Const . of 1786; Vt. Const. of 1777, ch. 1, §  14. For John Adams’s earlier proposal of a nearly identical provision, see John Adams, The Report of a Constitution or Form of Government for the Commonwealth of Massachusetts (Sept. 1, 1779), reprinted in 4  The Works of John Adams 219, 227 (Charles Francis Adams ed., Boston, Charles C. Little & James Brown 1851) (“The people have a right to the freedom of speaking, writing, and publishing their sentiments. The liberty of the press, therefore, ought not to be restrained.”). For a brief history of this proposal, see Clyde Augustus Duniway, The Development of Freedom of the Press in Massachusetts 133-36 (1906).

4 William Blackstone, Commentaries * 151, *152. Notably, Blackstone assumed that “the object of legal punishment” was harmful speech, “destructive of the ends of society.” Id. at * 153.

De Lolme, supra note 182, at 283. Sedition was originally tried in the Star Chamber, without common-law procedural rights. See Mayton, supra note 8, at 105.

Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 455 (Merrill Jensen ed., 1976); see also, e.g. , [Hugh Williamson], Speech at Edenton, N.C. , N.Y. Daily Advertiser (Feb. 25, 1788), in 16 Documentary History of the Ratification, supra note 14, at 201, 202 (John P. Kaminski & Gaspare J. Saladino eds., 1986) (equating freedom of the press with freedom from “the restraint of any license”); N.Y. Legislative Debates (Jan. 26, 1790), in N.Y. Daily Gazette , Jan. 27, 1790, at 2 (statement of Rep. Rufus King) (same).

To the Citizens of Virginia , Winchester Va. Gazette , Feb. 22, 1788, reprinted in 8  Documentary History of the Ratification , supra note 14, at 404-05 (1988) ; cf. Letter from John Adams to William Cushing (Mar. 7, 1789), in Freedom of the Press , supra note 73, at 152, 153 (“[I]f the jury found [the putatively libellous statements] true and that they were published for the Public good, they would readily acquit.”); Cincinnatus I: To James Wilson, Esquire , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification , supra note 14, at 160, 163 (John P. Kaminski et al. eds., 2003) (warning that without a jury the government “will easily find pretexts” to restrain “what it may please them to call—the licentiousness of the press”).

See, e.g. , Meyler, supra note 18, at 581.

See Hamburger, supra note 3, at 954. Inalienable natural rights, just like alienable natural rights, were circumscribed by natural law. Id. at 931-32, 954.

Wilson, supra note 131, at 509.

Id. at 514-18.

Id. at 522.

See R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice 97-98 (2015).

Addison, supra note 94, at 29; see Helmholz, supra note 207, at 96 (mentioning English invocations of this idea); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought , 30 Stan. L. Rev . 843, 854 (1978) (describing the custom of the common law as “the most reliable evidence of the content of natural law”); see also Larry D. Kramer, The Supreme Court, 2000 Term—Foreword: We the Court , 115 Harv. L. Rev . 5, 39-40 (2001) (noting that natural rights required political recognition before entering the customary constitution).

Wooddeson, supra note 13, at 28; see, e.g. , 1 William Blackstone, Commentaries *74 (observing that the common law “probably was introduced by the voluntary consent of the people”); Sullivan , supra note 102, at 16 (“The common law, is a system of commonly received opinions, established by the common consent of the people, without acts of the legislature, and defined by practice in the courts of law.”); James Wilson, Of Municipal Law , in 1 Collected Works of James Wilson , supra note 85, at 549, 569 (“A customary law carries with it the most unquestionable proofs of freedom in the country, which is happy enough to be the place of its abode.”).

See Reid, supra note 74, at 22. Overlooking the Founders’ appreciation for the substantial indeterminacy of natural law, James Whitman asserts that their writings about custom and reason lacked coherence and intelligibility and were, instead, “a confused mélange.” James Q. Whitman, Why Did the Revolutionary Lawyers Confuse Custom and Reason? , 58 U. Chi. L. Rev . 1321, 1323, 1367 (1991). This position leads Whitman to the bold conclusion that “[t]here is little point in trying to identify the underlying logic of American legal thinking in the revolutionary era,” and “[s]tudies that purport to explain the Founders’ conception of the Constitution are thus doomed to mislead.” Id. at 1366-67. In my view, Whitman gives inadequate attention both to the recognition of underdeterminacy in reason, which made it far easier to claim simultaneous fidelity to both reason and custom, and to the rational need for established legal rules, including customary rules. Locke and Blackstone, for instance, each insisted that human law must conform to natural law, that natural law is a highly underdeterminate source of law, and that reason dictates that governments must act pursuant to established rules. See 1 William Blackstone, Commentaries *42-55, *67-71; John Locke , Second Treatise of Government §§ 135-137 (1690), reprinted in John Locke, supra note 111, at 159-61.

See James Wilson, Of the Law of Nations , in 1 Collected Works of James Wilson , supra note 85, at 526, 529; see also , e.g. , 1 William Blackstone, Commentaries *41 (“This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other . . . . [N]o human laws are of any validity, if contrary to this.”).

Hamburger , supra note 113, at 38-39.

John Phillip Reid, Controlling the Law: Legal Politics in Early National New Hampshire 25 (2004) (quoting Dudley).

Hay , supra note 152, at 9.

Of course, the divide between lawyers and non-lawyers is stylized, just like my distinction between elites and non-elites. See Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 309.

See supra notes 200-201 and accompanying text.

Addison, supra note 94, at 48; see also, e.g. , William Paterson, Second Draft Opinion on the Sedition Law of 1798, reprinted in Williamjames Hull Hoffer, William Paterson and the National Jurisprudence: Two Draft Opinions on the Sedition Law of 1798 and the Federal Common Law , 22 J. Sup. Ct. Hist. 36, 48 (1997) (“[T]he freedom of the press is a relative term; and refers to an existing rule. We must first know in what the freedom of the press consists . . . .The com. law gives the rule, which is well known to every part of the U. States.”). Federalist arguments about judicial power had drifted in some respects by the late 1790s. See Larry D. Kramer, Marbury and the Retreat from Judicial Supremacy , 20 Const. Comment . 205, 220-21 (2003). But struggles between lawyerly and non-lawyerly modes of constitutional interpretation were already prominent by the late 1780s. See Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 304-11.

James Madison, The Report of 1800 (Jan. 7, 1800), in 17 The Papers of James Madison 303, 309 (David B. Mattern et al. eds., 1991). The context of this passage was a defense of state interpretive authority, but Madison’s language nicely captures the essence of his attack on using the common law to delineate the scope of speech and press freedoms.

Id. at 336.

Id. at 338. This analysis came in the midst of Madison’s discussion of “the proper boundary between the liberty and licentiousness of the press,” id. at 337, and the degree to which states, as a matter of “wis[e] . . . policy,” id. at 338, had properly chosen to underenforce speech-restrictive rules. The Virginia Report of 1800 never took the broad, affirmative position that any restriction of political speech necessarily violates speech and press freedoms. Rather, it presented a narrower, negative argument that American protections for expressive freedom ought to be “greater” than in England, id. at 337, and were, in practice, “not . . . confined to the strict limits of the common law,” id. at 338.

Id. at 337. Relatedly, Republicans denied that judges were the exclusive or supreme arbiters of constitutional meaning. See Kramer, supra note 217, at 222.

Madison, supra note 218, at 337, 339.

See id. at 339 (“[The First Amendment] was meant as a positive denial to Congress, of any power whatever on the subject.”).

For the defeat of proposals to guarantee the freedom of the press, see 2 The Records of the Federal Convention of 1787 , at 341, 587-88, 617 (Max Farrand ed., 1911). For a more detailed account, see Paul Finkelman, James Madison and the Bill of Rights: A Reluctant Paternity , 9 Sup. Ct. Rev . 301, 304-08 (1990).

See, e.g. , George Mason, Objections to the Constitution of Government Formed by the Convention , in 8 Documentary History of the Ratification , supra note 14, at 43, 43 (John P. Kaminski & Gaspare J. Saladino eds., 1988). Anti-Federalists “were by no means a homogenous or cohesive group,” but “common themes run through many of their writings.” Wesley J. Campbell, Commandeering and Constitutional Change , 122 Yale L.J. 1104, 1127-28 (2013). For the leading treatment of Anti-Federalism, see Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (1999). For a concise history of the Bill of Rights, see Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788, at 435-68 (2010).

See, e.g. , Pennsylvania Ratification Convention Debates (Nov. 28, 1787) (statement of Robert Whitehill), in 13 Documentary History of the Ratification , supra note 14, at 399, 402 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (stating that “from the nature of their power they must necessarily be the judges, what laws are necessary and proper”); Pennsylvania Ratification Convention Debates (Dec. 4, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification , supra note 14, at 467, 468 (Merrill Jensen ed., 1976) (“The powers of Congress are unlimited and undefined. They will be the judges of what is necessary and proper .”); Virginia Ratification Convention Debates (June 10, 1788) (statement of James Monroe), in 9 Documentary History of the Ratification, supra note 14, at 1092, 1112 (John P. Kaminski & Gaspare J. Saladino eds., 1990) (stating that Congress would be “not restrained or controuled from making any law, however oppressive in its operation, which they may think necessary to carry their powers into effect”) .

Brutus II , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification , supra note 14, at 154, 156 (John P. Kaminski et al. eds., 2003); see also, e.g. , Cincinnatus I: To James Wilson, Esquire , N.Y. J., Nov. 1, 1787, reprinted in id. at 160, 162 (“The conventions that made the state and the general constitutions, sprang from the same source, were delegated for the same purpose . . . .”).

An Officer of the Late Continental Army , Indep. Gazetteer (Philadelphia), Nov. 6, 1787, reprinted in 2 Documentary History of the Ratification , supra note 14, at 210, 211 (Merrill Jensen ed ., 1976). The following year, Findley tied the “right of every man to publish his sentiments on public proceedings” to the requirement of a jury trial, but he did not suggest that publishers were constitutionally immune from prosecution even with a jury . Pennsylvania Assembly Debates (Sept. 1788) (statement of Rep. William Findley), in Respublica v. Teischer, 1 U.S. (1 Dall.) 335, 335-36 n.* (Pa. 1788). For other concerns about the manipulations of libel laws, see Virginia Ratification Convention Debates (June 16, 1788) (statement of George Mason), in 10 Documentary History of the Ratification , supra note 14, at 1325, 1326 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (noting that Congress might construe its powers to punish “any writer [who] should dare to stand forth and expose to the community at large, the abuses of those powers”); and Pennsylvania Ratification Convention Debates (Dec. 4, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification, supra note 14, at 467, 468 (Merrill Jensen ed ., 1976) (“The liberty of the press is not secured. Congress may license the press, and declare what shall be a libel.”). Others located a possible grounding for this power in the Speech and Debate Clause. See Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of Robert Whitehill), in 2 Documentary History of the Ratification, supra note 14, at 454 , 454 (Merrill Jensen ed., 1976) (“The press is by this clause restrained; because the members shall not be questioned for speeches in any other place.”).

A Plebeian, An Address to the People of the State of New York (Apr. 17, 1788), in 20 Documentary History of the Ratification , supra note 14, at 942, 961 ( John P. Kaminski et al. eds., 2004); Federal Farmer No. 16 (Jan. 20, 1788), in id. at 1059.

See, e.g. , Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of Robert Whitehill), in 2 Documentary History of the Ratification , supra note 14, at 454 , 454 (Merrill Jensen ed., 1976) (stating that Congress, under the Copyright Clause, “may license the press, no doubt ; and under licensing the press, they may suppress it”) .

See, e.g. , Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 30, 1788) (statement of William Lenoir), in 4 Debates in the Several State Conventions, supra note 76, at 203 (“[Congress] have also an exclusive legislation in their ten miles square . . . . Should any one grumble at their acts, he would be deemed a traitor, and perhaps taken up and carried to the exclusive legislation, and there tried without a jury.”); Virginia Ratification Convention Debates (June 16, 1788) (statement of George Mason), in 10 Documentary History of the Ratification, supra note 14, at 1325, 1326 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (“[C]ould they not . . . lay a dangerous restriction on the press? Might they not even bring the trial of this restriction within the ten miles square, when there is no prohibition against it?”).

But see An Old Whig III , Indep. Gazetteer (P hiladelphia), Oct. 20, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 425, 426-27 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) (identifying the Supremacy Clause as a potential threat to the freedom of the press).

Cf. Address of the Minority of the Maryland Convention , Annapolis Md. Gazette , May 1, 1788, reprinted in 17 Documentary History of the Ratification, supra note 14, at 242, 244 ( John P. Kaminski & Gaspare J. Saladino eds., 1995) (“In prosecutions in the federal courts for libels, the constitutional preservation of this great and fundamental right may prove invaluable.”); Cincinnatus I: To James Wilson, Esquire , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification, supra note 14, at 160, 163-64 (John P. Kaminski et al. eds., 2003) (describing press freedom as the “only” security “that will save any future printer from the fangs of power” because otherwise “the judges might put the verdict of a jury out of the question”).

An exception was the frequent Anti-Federalist inclusion of a “right to freedom of speech, and of writing and publishing their sentiments,” or similar phrases, in their lengthy lists of draft amendments. See Virginia Convention Amendments (June 27, 1788), in 18 Documentary History of the Ratification , supra note 14, at 199, 202 ( John P. Kaminski & Gaspare J. Saladino eds., 1995); see also Proposals from the State Conventions, in Complete Bill of Rights , supra note 73, at 93 (presenting similar proposals by North Carolina, Rhode Island, and the Pennsylvania minority); The Society of Western Gentlemen Revise the Constitution , Va. Indep. Chron. ( Richmond ), Apr. 30, 1788, reprinted in 9 Documentary History of the Ratification , supra note 14, at 769, 773 ( John P. Kaminski & Gaspare J. Saladino eds., 1990) (“That the people have a right to the freedom of speech, of writing, and publishing their sentiments; therefore printing presses shall not be subject to restraint, other than liableness to legal prosecution, for false facts printed and published.”) . A decade earlier, some town returns in Massachusetts mentioned the omission of the freedom of speech (or speaking, writing, and publishing) in the state’s proposed constitution. See The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780 , at 682, 742, 749-50, 762, 789, 795, 856 (Oscar Handlin & Mary Handlin eds., 1966).

Federal Farmer No. 16 (Jan. 20, 1788), in 20 Documentary History of the Ratification, supra note 14, at 1051, 1057-58 ( John P. Kaminski et al. eds., 2004); see also, e.g. , A Plebeian, An Address to the People of the State of New York (Apr. 17, 1788), in 20 Documentary History of the Ratification , supra note 14, at 942, 961-62 ( John P. Kaminski et al. eds., 2004) (focusing on fundamental positive rights); Brutus II , N.Y. J., Nov. 1, 1787, reprinted in 19 Documentary History of the Ratification , supra note 14, at 154, 156-59 ( John P. Kaminski et al. eds., 2003) (same); Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), in 12 The Papers of Thomas Jefferson, supra note 14, at 438, 440 (1955) (same). Many Anti-Federalists mentioned the freedom of conscience, which was an inalienable natural right that had assumed a place in the customary constitution (through the Toleration Act, for instance). McAffee asserts that Federal Farmer’s “same analysis applied to the rights that were considered natural and inalienable,” McAffee, supra note 41, at 278, but McAffee errs by concluding that Federal Farmer viewed press freedom as a retained natural right. See supra note 193.

See, e.g. , Heyman, supra note 3, at 1289 (noting that the “most important” rights to Anti-Federalists included “freedom of speech and press”); cf. Mayton, supra note 8, at 118 (“[A]n understanding was reached at the convention and during the ratification process that the national government had no power over speech.”). But see Rosenthal, supra note 6, at 15 (“As for freedom of speech, anti-Federalists said virtually nothing about it.”); Federal Farmer No. 6 (Dec. 25, 1787), in 20 Documentary History of the Ratification, supra note 14, at 979, 985 (John P. Kaminski et al. eds., 2004) (mentioning only press freedom); Virginia Ratification Convention Debates (June 16, 1788) (statement of Patrick Henry), in 10 Documentary History of the Ratification, supra note 14, at 1328, 1332 (John P. Kaminski & Gaspare J. Saladino eds., 1993) (same); Philanthropos [Tench Coxe], To the People of the United States , Pa. Gazette ( Philadelphia ), Jan. 16, 1788, reprinted in 15 Documentary History of the Ratification, supra note 14, at 391, 393 ( John P. Kaminski & Gaspare J. Saladino eds., 1984) (noting that, outside of Pennsylvania, “the freedom of speech” was unmentioned by leading Anti-Federalists). Anti-Federalist references to freedom of expression usually related to the effect of press restraints on public discussion. See, e.g. , An Old Whig I , Indep. Gazetteer ( Philadelphia) , Oct. 12, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 376, 378 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) ( mentioning, in a discussion of press freedom, “free communication . . . on political subjects”); [Samuel Bryan], Centinel II , Phila. Freeman’s J. , Oct. 24, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 457, 460, 466 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) ( mentioning “the right of expressing and publishing . . . sentiments upon every public measure” but otherwise focusing solely on press freedom). Mentions of the longstanding English right of petition were similarly rare. See Mark, supra note 82, at 2206.

See Wood, supra note 18, at 295-96; Rakove, supra note 77, at 187 ; John Phillip Reid, The Authority of Rights at the American Founding , in The Nature of Rights , supra note 76, at 67, 97 ; Suzanna Sherry, Natural Law in the States , 61 U. Cin. L. Rev . 171, 171-72 (1992) ; Suzanna Sherry, The Founders’ Unwritten Constitution , 54 U. Chi. L. Rev. 1127, 1157-58 (1987); William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455, 502 (2005). Whether customary positive rights implicitly limited governmental authority continued to be a topic of heated discussion. Compare Calder v. Bull, 3 U.S. (3 Dall.) 386, 387-89 (1798) (opinion of Chase, J.) (concluding that certain fundamental positive rights were implicit limitations on governmental power), with id. at 398-99 (opinion of Iredell, J.) (confining judicial review to enumerated rights).

[Jay], supra note 75, at 933; see also, e.g. , Uncus , Md. J. ( Baltimore ) , Nov. 9, 1787, reprinted in 14 Documentary History of the Ratification, supra note 14, at 76, 78 ( John P. Kaminski & Gaspare J. Saladino eds., 1983) (declaring that freedom of the press is “a privilege, with which every inhabitant is born;-a right . . . too sacred to require being mentioned”); Fo e deral Constitution , Pa. Gazette ( Philadelphia), Oct. 10, 1787, reprinted in 13 Documentary History of the Ratification, supra note 14, at 362, 363 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) (“[T]he Liberty of the Press would have been an inherent and political right, as long as nothing was said against it.”); South Carolina Ratification Convention Debates (Jan. 18, 1788) (statement of Charles Cotesworth Pinckney), in Complete Bill of Rights , supra note 73, at 98, 98 (“The general government . . . has no power to take away the liberty of the press.”).

See Virginia Ratification Convention Debates (June 25, 1788), in 10 Documentary History of the Ratification, supra note 14, at 1537-38 ( John P. Kaminski & Gaspare J. Saladino eds., 1993); New York Declaration of Rights, Form of Ratification, and Recommendatory Amendments to the Constitution (July 26, 1788), in 23 Documentary History of the Ratification , supra note 14, at 2326, 2326-28 ( John P. Kaminski et al. eds., 2009).

See Campbell, supra note 13, at 100.

The Federalist No. 84, supra note 114, at 579 (Alexander Hamilton); see also, e.g. , A Native of Virginia: Observations upon the Proposed Plan of Federal Government (Apr. 2, 1788), in 9 Documentary History of the Ratification, supra note 14, at 655, 691 ( John P. Kaminski & Gaspare J. Saladino eds., 1990) (“[A]s the Congress can claim the exercise of no right which is not expressly given them by this Constitution; they will have no power to restrain the press in any of the States; and therefore it would have been improper to have taken any notice of it.”); [Robert Sherman], A Citizen of New Haven , Conn. Courant ( Hartford), Jan. 7, 1788, reprinted in 3 Documentary History of the Ratification, supra note 14, at 524, 525 (Merrill Jensen ed., 1978) (“The liberty of the press can be in no danger, because that is not put under the direction of the new government.”).

See James Wilson, Speech at a Public Meeting in Philadelphia (Oct. 6, 1787), in 13 Documentary History of the Ratification , supra note 14, at 337, 340 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) ; Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification , supra note 14, at 454, 454-55 (Merrill Jensen ed., 1976); [James Iredell], Marcus No. 4 , Norfolk & Portsmouth J. , Mar. 12, 1788, reprinted in 16 Documentary History of the Ratification , supra note 14, at 379, 382 ( John P. Kaminski & Gaspare J. Saladino eds., 1986) (“[T]he future Congress will have no other authority over [the press] than to secure to authors for a limited time the exclusive privilege of publishing their works.”). But Federalists generally denied only federal power over the freedom of the press .

The Federalist No. 84, supra note 114, at 580 n.* (Alexander Hamilton). Other Federalists equated press freedom with freedom from “the restraint of any license.” Hugh Williamson, Speech at Edenton, N.C. , N.Y. Daily Advertiser , Feb. 25, 1788, reprinted in 16 Documentary History of the Ratification, supra note 14, at 201, 202 ( John P. Kaminski & Gaspare J. Saladino eds., 1986); see, e.g. , Pennsylvania Ratification Convention Debates (Dec. 1, 1787) (statement of James Wilson), in 2 Documentary History of the Ratification , supra note 14, at 454, 455 (Merrill Jensen ed., 1976) (“[W]hat is meant by the liberty of the press is, that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual.”).

See infra notes 122 -128 and accompanying text.

The Federalist No. 84, supra note 114, at 578 (Alexander Hamilton); see Shain, supra note 158, at 127; see, e.g. , Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution (July 29, 1788) (statement of [Archibald] Maclaine), in 4 Debates in the Several State Conventions , supra note 76, at 160, 166-67; John De Witt No. 2 , Am. Herald ( Boston), Oct. 29, 1787, reprinted in 4 Documentary History of the Ratification, supra note 14, at 156, 158-59 ( John P. Kaminski & Gaspare J. Saladino eds., 1997); see also Terry Brennan, Natural Rights and the Constitution: The Original “Original Intent , ” 15 Harv. J.L. & Pub. Pol’y 965, 988-97 (1992) (collecting dozens of examples).

See, e.g. , Letter from George Washington to James Madison (ca. May 31, 1789), in 12 The Papers of James Madison , supra note 72, at 191, 191 (Charles F. Hobson et al. eds., 1979); Letter from David Ramsay to Benjamin Rush (Nov. 10, 1787), in 14 Documentary History of the Ratification , supra note 14, at 83, 83-84 ( John P. Kaminski & Gaspare J. Saladino eds., 1983).

See Finkelman, supra note 224, at 336-37; see also Cornell , supra note 225, at 158-63 (explaining the modesty of the Bill of Rights); see also, e.g. , Letter from Fisher Ames to Thomas Dwight (June 11, 1789), in 16 Documentary History of the First Federal Congress, supra note 14, at 748, 749 (Charlene Bangs Bickford et al. eds., 2004) (“Upon the whole, it may do some good towards quieting men who attend to sounds only, and may get the mover [James Madison] some popularity—which he wishes.”); Letter from Pierce Butler to James Iredell (Aug. 11, 1789), in 16 Documentary History of the First Federal Congress, supra , at 1288, 1289 (Charlene Bangs Bickford et al. eds., 2004) (“A few milk-and-water amendments have been proposed by Mr. M[ adison ], such as liberty of conscience, a free press, and one or two general things already well secured.”).

See Letter from Thomas Jefferson to James Madison (Mar. 15, 1789), in 14 The Papers of Thomas Jefferson , supra note 14, at 659, 660 (1958) (“This instrument forms us into one state as to certain objects, and gives us a legislative and executive body for these objects. It should therefore guard us against their abuses of power within the feild [sic] submitted to them.”). Scholars have long disagreed about Madison’s private ambivalence about a bill of rights. See Stuart Leibiger, James Madison and Amendments to the Constitution, 1787-1789: “Parchment Barriers , ” 59 J .S. Hist . 441, 441-42 (1993) (reviewing the scholarly debate).

Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 818, 823 (Charlene Bangs Bickford et al., eds., 1992).

Id. at 823-24.

Id. at 823.

Id. at 825 (“ [I]ndependent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights”). Scholars often misattribute to Madison the idea that enumerating a right in the Constitution was necessary and sufficient for its judicial enforceability against contrary legislation. See, e.g. , Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation? , 5 N.Y.U. J.L. & Liberty 1, 19-20 (2010). Both the wording and the context of Madison’s statement, however, indicate that “ Madison was making a point about judicial psychology and judicial politics, not judicial duty.” Jud Campbell, Judicial Review and the Enumeration of Rights , 15 Geo. J.L. & Pub. Pol’y 569, 571 (2017). Madison, in other words, was addressing the same types of concerns that Alexander Hamilton mentioned in The Federalist regarding the “natural feebleness” of the judiciary, which Hamilton described as “in continual jeopardy of being overpowered, awed or influenced by [the] coordinate branches . . . .” The Federalist No. 78, supra note 114 , at 523 (Alexander Hamilton ).

Madison Resolution (June 8, 1789), in 4 Documentary History of the First Federal Congress, supra note 14, at 9 , 10 (Charlene Bangs Bickford & Helen E. Veit eds., 1986).

James Madison, Notes for Speech in Congress (June 8, 1789), in 12 The Papers of James Madison , supra note 72, at 193, 194 (Charles F. Hobson et al. eds., 1979) (“ natural rights , retained—as Speech, Con[science]”) .

Madison also singled out the freedom of the press in a set of three rights that would apply against state governments, again suggesting an intent to treat speech and press freedoms differently. See Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 818, 826 (Charlene Bangs Bickford et al. eds., 1992).

Proposal by [Roger] Sherman to House Committee of Eleven (July 21-28, 1789), in Complete Bill of Rights, supra note 73, at 83, 83.

House Committee of Eleven Report (July 28, 1789), in Complete Bill of Rights , supra note 73, at 84, 84. For a slightly longer discussion of the Amendment’s drafting history, see Rosenthal, supra note 6, at 15-17.

U.S. Const. amend. I.

See generally A. P. Martinich, Four Senses of ‘Meaning’ in the History of Ideas: Quentin Skinner’s Theory of Historical Interpretation , 3 J. Phil. Hist . 225 (2009) (classifying the four types of “meaning” in the history of ideas); Lawrence B. Solum, Intellectual History as Constitutional Theory , 101 Va. L. Rev. 1111 (2015) (examining the role of intellectual history in constitutional theory). Prompted by critics, see, e.g. , Paul Brest, The Misconceived Quest for the Original Understanding , 60 B.U. L. Rev. 204, 215-16 (1980), contemporary originalism scholarship focuses largely on the original “meanings” of constitutional provisions rather than the Framers’ intentions. The distinction between intentions and meanings is somewhat porous, however, considering that Madison—a native speaker of the language of eighteenth-century American constitutionalism—tried to draft a provision with the meaning that he intended. See Gienapp, supra note 10, at 938 & n.15; Solum, supra , at 1134-36.

See supra note 22 (collecting sources that discuss Founding Era disagreements about methods of constitutional interpretation).

See supra Section II.A.

For an introduction to “equitable” interpretation, see Hamburger , supra note 113, at 344-57; McConnell, supra note 252, at 20-21; and Michael W. McConnell, The Ninth Amendment in Light of Text and History , 2009 Cato Sup. Ct. Rev. 13.

See supra notes 124-136 and accompanying text.

Hortensius [ George Hay ], An Essay on the Liberty of the Press 38 (Philadelphia, Aurora Office 1799).

The Federalist No. 84, supra note 114, at 579 (Alexander Hamilton).

Id. at 580; see also Cooper v. Telfair, 4 U.S. (4. Dall.) 14, 18 (1800) (opinion of Chase, J.) (“The general principles contained in the constitution are not to be regarded as rules to fetter and controul; but as matter merely declaratory and directory . . . .”); 3 Documentary History of the Ratification, supra note 14 , at 471, 472-73 (Merrill Jensen ed., 1978) (making a similar point); [Webster], supra note 140 , at 484, 490 (“[A]ny restriction of [Congressional] power by a general indefinite expression, is a nullity—mere formal nonsense .”). In The Federalist , Hamilton expressed contradictory views, stating both that without judicial protection “the reservations of particular rights or privileges would amount to nothing,” The Federalist No. 78 , supra note 114 , at 524 (Alexander Hamilton), and that placing “ the whole power of the proposed government . . . in the hands of the representatives of the people . . . is the essential, and after all the only efficacious security for the rights and privileges of the people which is attainable in civil society,” The Federalist No. 28 , supra note 114, at 178 (Alexander Hamilton).

Parsons , supra note 111, at 367; see also, e.g. , Letter from James Madison to Caleb Wallace (Aug. 23, 1785), in 8 The Papers of James Madison , supra note 78, at 350, 351 (Robert A. Rutland et al. eds., 1973) (describing bills of rights as providing “exceptions” to legislative authority); The Federalist No. 78, supra note 114, at 524 (Alexander Hamilton) (describing constitutional rights like the rule against “ex-post-facto laws” as “certain specified exceptions to the legislative authority” that are enforceable in court).

Congressional Debates (June 8, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 818, 823 (Charlene Bangs Bickford et al. eds., 1992) (emphasis added).

Id. at 824.

See supra Section II.C.

See supra Section II.B.

Addison, supra note 94, at 48. That stance, however, may be less revealing of original meaning than of the emergent Federalist quest for judicial supremacy, which sought to separate constitutional interpretation from matters of policy. Cf. Cornell, The People’s Constitution vs. The Lawyer’s Constitution , supra note 9, at 307 (“Elite legal culture in the Founding Era, particularly among Federalists, was designed to shore up a basic distinction between law and politics . . . . Proponents of popular constitutionalism generally sought to eliminate this distinction . . . .”); Iredell, supra note 49, at 344 (distinguishing “considerations of policy” from “questions of law”).

This account of the “original meaning” of the First Amendment is subject to the caveats mentioned in Part I regarding elite sources.

See sources cited supra note 4.

See Josh Chafetz, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions 87-90 (2007); Bogen, supra note 8, at 431-35; Robert J. Reinstein & Harvey A. Silverglate, Legislative Privilege and the Separation of Powers , 86 Harv. L. Rev . 1113, 1120-40 (1973).

Bogen, supra note 8, at 436.

Amar, supra note 5, at 815; see sources cited supra note 5.

As one scholar observes, “The tie between legislative privilege and the first amendment was asserted as early as 1799 by George Hay.” Bogen, supra note 8, at 435 (citing [Hay] , supra note 265). True, but Hay was defining the meaning of the word “freedom,” not the provenance of the term “freedom of speech.” [ Hay ], supra note 265, at 42 (“[T]he meaning of the word freedom, is precisely and unequivocally established by the constitution itself.”). Hay argued that this “freedom” was secured through “a total exemption from the control of any law, or the jurisdiction of any court.” Id. John Thomson also analogized to legislative privilege without suggesting that it was the originating concept for the freedom of speech. See Thomson , supra note 24, at 19-20, 76-77.

Amar, supra note 5, at 790; cf. William Michael Treanor, Taking Text Too Seriously: Modern Textualism, Original Meaning, and the Case of Amar’s Bill of Rights, 106 Mich. L. Rev . 487, 494 (2007) (criticizing Amar’s “assumption that careful reading of the text consistently reveals original meaning”).

See, e.g. , Pa. Const . of 1790, art. IX, § 7 (declaring the right to speak on “any subject”); 3 Joseph Story, Commentaries on the Constitution of the United States § 1874 (1833) (recognizing “a right to speak, write, and print his opinions upon any subject whatsoever”); Tucker , supra note 133, at 376 (“Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political . . . .”); Wilson, supra note 85, at 1055-56 (stating that natural liberty existed for man to accomplish “those purposes . . . as his inclination and judgment shall direct”); Letter from William Cushing to John Adams (Feb. 18, 1789), in Freedom of the Press , supra note 73, at 147, 150 (“[D]oes [press freedom] not comprehend a liberty to treat all subjects and characters freely, within the bounds of truth?”) . A polity could, of course, choose to reaffirm only a portion of this natural liberty in its declaration of rights. See, e.g. , Vt. Const . of 1786, ch. I, § V (“That the people have a right of freedom of speech and of writing and publishing their sentiments, concerning the transactions of government . . . .”). Again, my focus is the meanings of the Speech and Press Clauses, not the motives for enacting them. See supra note 58 (explaining my approach).

Heyman, supra note 3, at 1282; see supra note 48 (discussing Philip Hamburger’s views).

Individuals, by contrast, had natural rights—and particularly the right of reputation—that could be abridged even through well-intentioned statements, thus placing a natural-law qualification on the inalienable right to make well-intentioned statements.

See sources cited supra note 182.

Examples include profane swearing bans, blasphemy laws, restrictions on advertising, restrictions on theater performances, and rules against making certain agreements on Sundays. See 8 Annals of Cong . 2148-49 (1798) (statement of Rep. Harrison Gray Otis) (recounting many extant legal restrictions on speech); Constitution and Laws of the State of New Hampshire; Together with the Constitution of the United States 339 (1805) ( prohibiting lotteries and any advertising thereof) ; 3 Laws of the Commonwealth of Pennsylvania, 1700-1810, at 177-78 (1810) ( forbidding “any worldly employment or business whatsoever” on Sunday, as well as profanity and swearing at all times).

See Michael W. McConnell, Tradition and Constitutionalism Before the Constitution , 1998 U. Ill. L. Rev . 173, 196; Rakove, supra note 77, at 193. Indeed, the Ninth Amendment may reject “the necessity or superiority of enumeration.” Kurt T. Lash, The Lost History of the Ninth Amendment 82 (2009). Some people suggested that enumeration would facilitate the judicial enforcement of rights, see, e.g. , An Old Whig II , Indep. Gazetteer ( Philadelphia), Oct. 17, 1787, reprinted in 13 Documentary History of the Ratification , supra note 14, at 399, 402 ( John P. Kaminski & Gaspare J. Saladino eds., 1981) (“[W]ho can overrule [Congress’s] pretensions?-No one, unless we had a bill of rights to which we might appeal, and under which we might contend against any assumption of undue power and appeal to the judicial branch of the government to protect us by their judgements.”), but these claims surely referred to legal rights and did not intimate that judges would assume the position of deciding which restrictions of natural liberty promoted the public good, see supra notes 232-236 and accompanying text.

Congressional Debates (Aug. 15, 1789) (statement of Rep. James Madison), in 11 Documentary History of the First Federal Congress , supra note 14, at 1259, 1259 (Charlene Bangs Bickford et al. eds., 1992); see Rakove, supra note 4, at 324.

Federalists made this point over and over in the Sedition Act debates. See, e.g. , H.R. Rep. No. 5-110, at 183 (1799) (contending that press freedom had never extended, “according to the laws of any State . . . to the publication of false, scandalous, and malicious writings against the Government”); Iredell, supra note 49, at 348 (arguing that state constitutions and bills of rights were the “strongest proof . . . that the freedom of the press does not require that libellers shall be protected from punishment”).

But see Bogen, supra note 8, at 458 (“At a minimum, the freedom of speech meant that restrictions on speech are impermissible unless necessary to accomplish a legitimate function of government, and that the courts rather than the legislature should ultimately determine that necessity.”).

Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (opinion of Iredell, J.). The limited nature of Founding Era judicial review is well known. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law , 7 Harv. L. Rev . 129, 140-42 (1893); see also Christopher R. Green, Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review , 57 S. Tex. L. Rev . 169, 172-83 (2015) (documenting the strong presumption of constitutionality evident in early state court decisions); McGinnis, supra note 62, at 880-904 (explaining that early judges would find unconstitutionality only when constitutional meaning was “clear”) Notably, the clarity of constitutional law did not depend solely on text but “drew on well-established principles of the customary constitution as well.” Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 99 (2004).

Calder , 3 U.S. (3 Dall.) at 399 (opinion of Iredell, J.).

See, e.g. , Campbell, supra note 13, at 99-104.

Consequently, Founding Era judges repeatedly upheld narrowly drawn sedition laws. See Blumberg , supra note 8, at 1-6. Wendell Bird argues that some Federalist judges rejected the constitutionality of sedition laws. See Bird , supra note 3, at 474. Bird’s research is prodigious, but his evidence merely shows that Federalist judges accepted the freedom of opinion, not that they rejected the constitutionality of narrowly drawn sedition laws. See supra notes 166-187 and accompanying text. Bird, like Leonard Levy before him, “fails to recognize that it was possible for the framers of the first amendment [among other Founders], influenced by republican political theory, to expand the protection for freedom of expression well beyond the narrow boundaries of the English common law while retaining some conception of seditious libel.” Rabban, supra note 8, at 796.

But see supra notes 36 & 41 and accompanying text. To be sure, if viewed in isolation from its context, the First Amendment’s text could be stretched to eliminate federal power to regulate speech. All that a reader would have to do, after all, is disregard the limits on expressive freedom imposed by natural law and social obligation, leading to a view that the First Amendment categorically prohibited any interference with expression. See Tucker, supra note 133, at 386.

See Campbell, supra note 152. Although Republicans prevailed in their inventive interpretation of the First Amendment, an understanding of speech freedom as a natural right remained prominent in the nineteenth century. See, e.g. , Cooper , supra note 161, at 41; 1 Benjamin L. Oliver, The Rights of An American Citizen 222 (1832).

[Hay] , supra note 265, at 39.

See, e.g. , Leonard W. Levy, Introduction to Freedom of the Press , supra note 73, at xix, lvi-lvii; Jay, supra note 6, at 791.

See, e.g. , The Address of the Minority in the Virginia Legislature to the People of that State; Containing a Vindication of the Constitutionality of the Alien and Sedition Laws 12 (1799); Addison, supra note 94, at 44; Paterson, supra note 217, at 48; cf. The Federalist No. 84, supra note 114, at 575, 579 (Alexander Hamilton) (expressing concern that bills of rights could be “dangerous” because they could “afford a colourable pretext to claim more [governmental powers] than were granted”) .

House Resolution and Articles of Amendment (Aug. 24, 1789), in 4 Documentary History of the First Federal Congress, supra note 14, at 35, 36, 39 (Charlene Bangs Bickford & Helen E. Veit eds., 1986) (emphasis added).

See Anderson, supra note 6, at 493, 502, 508; Bogen, supra note 8, at 458 n.143. Even strict textualists might accept this argument. Cf. John F. Manning, Textualism as a Nondelegation Doctrine , 97 Colum. L. Rev . 673, 737 n.272 (1997) (“[T]extualist judges . . . do not categorically exclude a statute’s drafting evolution from their consideration of statutory context.”); Caleb Nelson, What Is Textualism? , 91 Va. L. Rev . 347, 361 (2005) (“[M]any textualists use records of a bill’s drafting history . . . .”).

See supra note 52 and accompanying text.

See Caleb Nelson, Judicial Review of Legislative Purpose , 83 N .Y.U. L. Rev . 1784, 1796 (2008).

376 U.S. 254 (1964).

See, e.g. , Wortman, supra note 24, at 259 (stating that public officials can sue for libel “upon the same footing with a private individual,” given that “[t]he character of every man should be deemed equally sacred, and of consequence entitled to equal remedy”); Tucker, supra note 133, at 237-38 (same); cf. Thomson , supra note 24, at 81-84 (calling for unimpeded public debate about public figures).

See supra notes 188-189 and accompanying text.

See, e.g. , John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution 181-85 (2013); Baude, supra note 63, at 2358-61; McConnell, supra note 62, at 1765; Stephen E. Sachs, Originalism as a Theory of Legal Change , 38 Harv. J.L. & Pub. Pol’y 817, 861-64 (2015).

See generally Randy E. Barnett, The Gravitational Force of Originalism , 82 Fordham L. Rev . 411, 420-31 (2013) (arguing that originalism can exert a “gravitational force” on doctrine, even when original meaning does not explicitly form the basis of judicial decisions).

See infra note 328.

For instance, robust judicial management of the Speech Clause might stem from a broader project of judicial engagement, see, e.g. , Barnett , supra note 69, at 132-49, 255-71, or process-based concerns about regulations of expression, see, e.g. , John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 105-16 (1980).

See, e.g. , Kagan, supra note 70, at 414; Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism , 27 J. Legal Stud . 725, 736-44 (1998); Strauss, supra note 70, at 196-202. See generally Richard H. Fallon, Jr., Implementing the Constitution 89-95 (2001) (discussing motive tests).

See Ronald Dworkin, Taking Rights Seriously, at xi (1977) (defining rights as “political trumps held by individuals”); Pildes, supra note 311, at 728 (identifying “the view of rights as immunities” as “the prevailing view among rights philosophers”). Modern doctrine permits regulation of speech for good reasons. See Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law , 97 Mich. L. Rev . 1, 19-26 (1998); Pildes, supra , at 736-44.

Pildes, supra note 311, at 729.

See generally United States v. Eichman, 496 U.S. 310 (1990) (invalidating a federal law that criminalized flag burning); Texas v. Johnson, 491 U.S. 397 (1989) (holding that flag burning is protected expression under the First Amendment); John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis , 88 Harv. L. Rev . 1482 (1975) (analyzing flag-desecration cases). Similarly, the government can impose criminal penalties on “fighting words”—i.e., speech likely to provoke violence—but it cannot target a more limited set of fighting words that the government finds especially objectionable. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

An important qualification is that the government generally cannot justify speech-suppressing laws based on communicative harms . This principle finds no historical support unless one supposes that its adoption, in the aggregate, promotes the public good.

See, e.g. , Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (upholding a content-based regulation of speech in the context of judicial elections).

The same pattern has been true of press freedoms. In the early twentieth century, the scope of the rule against prior restraints expanded beyond just bans on licensing regimes. See Near v. Minnesota, 283 U.S. 697 (1931). At the same time, the Court recognized that countervailing governmental interests can sometimes justify prior restraints. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (collecting cases). Similarly, procedural due process rights have vastly expanded in scope (covering “new property,” for instance), while now providing only a “flexible” degree of “procedural protections as the particular situation demands,” Matthews v. Eldridge, 424 U.S. 319, 321 (1976), rather than an inflexible set of common-law procedural rules. One could make a similar argument about many other rights.

See, e.g. , Hugo Black, The Bill of Rights , 35 N. Y.U. L. Rev . 865, 874 (1960); see also Alexander Meiklejohn, The First Amendment Is an Absolute , 1961 Sup. Ct. Rev . 245 (arguing that the First Amendment is absolute within the domain of self-governance).

See generally Ely, supra note 310.

See supra note 311 and accompanying text.

Some proponents of more robust speech doctrine in the early twentieth century took this approach, emphasizing the aggregate social benefits of speech-protective doctrines. See White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America , supra note 60, at 316-21. But a weakness in this approach was the indeterminacy of questions about the public good and doubts about why judges were better situated than legislators to make these types of assessments. Id. at 322.

Jack M. Balkin, The Construction of Original Public Meaning , 31 Const. Comment . 71, 93 (2016).

District of Columbia v. Heller, 554 U.S. 570, 635 (2008).

United States v. Stevens, 559 U.S. 460, 470 (2010).

Id. ; see also, e.g. , United States v. Alvarez, 567 U.S. 709, 717-18, 722-23 (2012) (plurality opinion) (summarizing the same idea and applying it to false statements).

See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2229 (2015). The issue in Reed was how to identify “content-based” speech restrictions—a concept aptly described as “the keystone of First Amendment law.” Kagan, supra note 70, at 443; see also Seth F. Kreimer, Good Enough for Government Work: Two Cheers for Content Neutrality , 16 U . Pa. J. Const. L. 1261, 1263 n.2 (2014) (collecting sources). Opting for a broader, more speech-protective definition, the Court declared that the First Amendment “expressly targets the operation of the laws— i.e. , the ‘abridg[ement] of speech’—rather than merely the motives of those who enacted them.” Reed , 135 S. Ct. at 2229 (alteration in original) (quoting U.S. Const. amend. I). Historically, however, the mere “operation” of a speech restriction did not present a judicially cognizable First Amendment problem unless it abridged either a common-law right or the inalienable liberty to express one’s thoughts. See supra notes 260-274 and accompanying text.

1 William Blackstone, Commentaries *125.

St. George Tucker , On the State of Slavery in Virginia (1796), reprinted in View of the Constitution of the United States with Selected Writings, supra note 133, at 402, 407.

Jack M. Balkin, Living Originalism 32 (2011); see also id. at 42 (identifying “abstract or vague phrases of the Constitution,” including “cruel and unreasonable punishments” and “freedom of speech”); id. at 350 n.12 (making the same point with respect to “the Fourth Amendment’s standard of ‘unreasonable’ searches and seizures and the First Amendment’s principle of ‘freedom of speech’”); Dworkin , supra note 54, at 199 (“The First Amendment, like the other great clauses of the Bill of Rights, is very abstract.”).

Cf. Dworkin , supra note 54, at 272 (“The framers meant to enact a moral principle of constitutional dimensions, and they used broad and abstract language appropriate to that aim.”).

Laura K. Donohue, The Original Fourth Amendment , 83 U. Chi. L. Rev. 1181, 1192 (2016); see also id. at 1270-71 (“That which was consistent with the common law was reasonable and, therefore, legal. That which was inconsistent was unreasonable and illegal.”).

Id. at 1192.

John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation , 102 Nw. U. L. Rev. 1739, 1743, 1745 (2008).

Id. at 1745.

By overwhelmingly relying on Founding Era legal elites, Donohue and Stinneford implicitly accept their sources’ belief that ostensibly abstract terms like “unreasonable” and “unusual” should be read as legal terms of art. Stinneford discounts a contrary statement by Samuel Livermore during the First Congress because “Livermore . . . does not appear to have been within the mainstream of eighteenth-century thought regarding the usefulness of common law precedent generally.” Stinneford, supra note 335, at 1809. But while Stinneford is surely correct that Livermore was outside the mainstream of constitutional thought among legal elites , his view nonetheless reflected an important current in American constitutional thought.

To be sure, originalists might accept the more lawyerly Federalist position, leaving the Donohue and Stinneford positions undisturbed. But that choice, it is worth noting, would require accepting Federalist views of the First Amendment, too, thus undermining any plausible originalist basis for modern speech law.

Two Models of the Right to Not Speak

• See full issue

Introduction: “One Damned Case After Another” 1

Following the revelations of foreign interference in the 2016 presidential election, several states passed election laws obliging internet platforms to disclose information about who purchased political ads on their websites. 2 Maryland’s version of these laws quickly bowed to a First Amendment challenge. 3 While “[s]unlight is said to be the best of disinfectants,” 4 even the sunlight of disclosure laws aimed at preserving a healthy democracy must suffer the right to free speech. The question is when such legal compulsions violate the right to not speak.

Compelled speech has long perplexed courts and commentators. At its core, the principle of the negative speech right is simple: freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” 5 The Supreme Court has reiterated this principle of First Amendment law in various contexts. 6 Recent examples include compelled disclosures by state abortion services 7 as well as agency-shop arrangements. 8 Individual Justices have relied on the negative speech right as a basis for exempting objectors from public accommodation obligations in longstanding civil rights laws. 9 Indeed, the right to not speak has arisen with enough variation to raise doubts about ever identifying a theory that explains compelled speech. 10 The result has seemingly been little more than “one damned case after another.” 11

When lost, first principles can help reorient. 12 This Note argues that, as a matter of first principles, the negative speech right can be understood in two distinct ways: The autonomy-influenced “speech production model” involves compelling a shift from silence to speech. The antisuppression-influenced “speech restriction model” involves compelled speech that, due to limits on the amount of speech possible, constrains what the speaker can say. The two models are implicated in different categories of compelled speech cases and track different harms. They therefore call for different doctrines tailored to their respective First Amendment values. Though not every case maps onto them, the models nonetheless bring coherence to much of the confused compelled speech precedent. More importantly, by highlighting the harms to First Amendment principles, these two models suggest a way to evaluate whether a compelled speech law survives the First Amendment.

Although the conceptual problem appears minor, it carries substantial implications. Compelled speech over the internet technically alters speech, but, as a result of the internet’s limitless nature as a speech medium, 13 it does not restrict opportunities to produce speech. 14 Instead, compelled internet speech principally involves the autonomy concern that lends itself to the lesser scrutiny of the speech production model. Yet because the current doctrine treats all compelled speech that alters speech as though it also restricts speech, it requires applying strict scrutiny to all instances of compelled internet speech despite the total absence of the speech-suppression concern that justifies strict scrutiny. 15 This Note concludes by attempting to realign compelled speech doctrine with the two models of the negative speech right to show that laws like Maryland’s — currently cropping up around the country — do not actually present the First Amendment issues the current doctrine implies. They are, in fact, innocuous. This Note seeks to show why.

I. The Two Models Defined

Courts and commentators have struggled to pinpoint what it is about compelled speech that raises constitutional concerns and how courts should adjudicate those concerns. 16 The best attempt to make sense of compelled speech jurisprudence has come from Professor Eugene Volokh, who has shown how the Court’s cases can be categorized and distinguished to produce consistency. 17 Though instructive as a doctrinal summary, Volokh’s article largely avoids linking that doctrine to the First Amendment values needed to explain why compelled speech is a constitutional problem at all. 18 Still missing, then, is a normative account for determining the scope of the compelled speech right — especially important, given that delineating categories of cases doesn’t help courts identify compelled speech problems in the first instance.

So let’s start anew, not from the compelled speech cases Volokh considers, but from the negative speech axiom itself. Doing so suggests that the negative speech right involves more than one model of compelled speech; here, as in other parts of constitutional law, we ought not to let the use of a single term obfuscate important differences. 19 In fact, though all compelled speech derives from the negative speech right, that right lends itself to two distinct models representing two distinct approaches to compelled speech: compelled speech production and compelled speech restriction. Distinguishing the two models will help identify the relevant constitutional values implicated across various instances of compelled speech.

A. Compelled Speech Production

Intuitively, the right to free speech necessarily implicates the right to choose what not to say. The characteristic element of this negative speech right model is a compelled movement from silence to speech. A prohibition occurs as a function of the government regulation, but it is a prohibition on silence. Where one otherwise would remain silent, the government regulation compels the speaker to engage in public discourse. The speech production model does not interfere with speech that the speaker is attempting to engage in. Rather, what suffers in the case of regulations touching on speech production is the capacity for the unwilling speaker to remain silent, without any correlated effect on whether she also wants to express speech of her own. 20 It is a right to be left alone by the government, protected in the privacy of one’s preference for silence. 21

The original compelled speech cases follow the speech production model of the negative speech right. West Virginia State Board of Education v. Barnette , 22 the original compelled speech case, followed this model: school children had no capacity to opt out of reciting the Pledge of Allegiance and saluting the flag. 23 If they could, they would have remained silent at their desks. Instead, the West Virginia regulation required them to enter public discourse, to engage in speech where they otherwise would not have done so. 24 Wooley v. Maynard 25 likewise followed the speech production model: but for the New Hampshire law announcing the state’s motto, drivers could have remained silent as to whether they accepted the notion of “Live Free or Die.” 26 Following this model too are cases of compelled subsidies, 27 in which the speaker unwillingly supports a particular cause she would not otherwise have contributed to, and compelled hosting of either government speech or private speech through the forced use of the unwilling speaker’s property. 28 Requiring expressive public accommodations to serve people on a nondiscriminatory basis would also fall under this category. 29

Despite Barnette ’s language about “fixed star[s] in our constitutional constellation,” 30 the Court has been willing to uphold compelled speech deriving from the speech production model. Implicated by the inability to remain silent, the speech production model is largely one concerned about speaker autonomy. 31 It is the right to be able to say what one wishes to say and nothing else. But since every law implicates autonomy to some degree, the Court has been more lenient unless the infringement on speaker autonomy raises additional concerns under the circumstances. The government does have some capacity to compel production of speech expressing a particular viewpoint given its need to take positions on political issues. 32 Where the government requires adoption of another private speaker’s speech, and does so on the basis of viewpoint, that too strikes close enough to the heart of autonomy as to raise maximal constitutional suspicion. 33 And the autonomy concern is at its peak with forced confessions of loyalty to the government. 34 In other circumstances, though, compelled speech production need not trigger maximal constitutional suspicion if the law does not meaningfully infringe on speaker autonomy. 35

B. Compelled Speech Restriction

The second model of the negative speech right involves compelled speech that restricts speech. The amount of possible speech supported by any given speech medium is often limited. Forcing someone to speak thereby forces the speaker to occupy a portion of a limited speech medium with expression that she would not otherwise have engaged in. The result is that she no longer has the room to say what she otherwise would have used the limited speech medium to say. The cases that roughly map onto this model are those that Volokh calls “[i]nterference[s] with a . . . coherent speech product.” 36 The speech compulsion functions as a speech restriction akin to the kind of content-based prohibition that the First Amendment has traditionally been understood to protect against. 37 Where the speech restriction model is implicated, the speech compulsion is a speech prohibition. 38

The speech restriction model has been on full display in Miami Herald Publishing Co. v. Tornillo , 39 Riley v. National Federation of the Blind of North Carolina, Inc ., 40 and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc . 41 In Tornillo , the Court applied strict scrutiny and invalidated a Florida right-of-reply statute that required newspapers to publish the response of a public figure about whom the newspapers had previously published criticism. 42 In so doing, the Court relied on the notion that the limited nature of the newspaper medium meant that newspapers could publish only so much speech. 43 By compelling some speech, the law stopped the newspapers from fully expressing what they wanted to say. 44 Similarly, the law at issue in Riley forced professional fundraisers to use their limited contact with potential donors to share the average percentage of gross receipts that the fundraisers actually turned over to charities, which prevented them from saying what they wanted to say. 45 Hurley found the same impositions: by compelling the hosts of a parade to include participants whom they would have otherwise excluded, the law both compelled expression and prohibited the hosts from saying something they otherwise would have said. 46

As the foregoing suggests, the Court is highly skeptical of compelled speech restrictions and tends to treat them as a form of content-based regulation. All content-based laws are subject to strict scrutiny. 47 That was one of the clarifications that Reed v. Town of Gilbert 48 brought. 49 The second concerned what constitutes a content-based law. The Reed Court’s answer was that laws are content-based when they classify on the basis of content. 50 Because compelled speech restrictions require the speaker to alter her speech content and thereby prohibit her from saying everything she wants to say, the Court generally treats laws altering coherent speech products the same as it treats content-based regulations. 51

C. Somewhere in Between?

We have, then, two distinct models of the negative speech right upon which to base compelled speech doctrine, each with distinct justifications and harms. We also have two lines of corresponding compelled speech cases, one involving forcing silent persons to speak, the other involving interference with people already speaking. Facially, the two models seem to map neatly onto these two compelled speech categories. The reality is more complicated, mostly because distinguishing between forced speech and an interference with speech is often arbitrary.

National Institute of Family & Life Advocates v. Becerra 52 ( NIFLA ) illustrates the problem. There, the Court evaluated a First Amendment challenge to the FACT Act, 53 a California law requiring state-licensed crisis pregnancy clinics to provide patrons with information about state-sponsored reproductive health services and facilities. 54 The employees themselves were not required to inform patrons. 55 Rather, the clinics could simply provide state-printed brochures in their waiting rooms before proceeding to engage in the speech that reflected their ideologies and values. 56 The Court treated this compelled disclosure law as a content-based regulation and held it unconstitutional. 57

Why, though? The Court could have interpreted the licensed notice requirement as a movement from nonspeech to speech, or even as a hosting of government speech. In that way, NIFLA could have gone the route of Rumsfeld v. Forum for Academic and Institutional Rights, Inc. 58 ( FAIR ): the government could have compelled someone not speaking to serve as a platform for the government’s purely factual information. 59 It isn’t literally true that nobody was speaking in NIFLA , but it wasn’t literally true in FAIR either: a federal law obliged law schools to send emails, post flyers, and otherwise engage in speech that facilitated on-campus military recruiters to the same extent as the law schools were providing for other employers on campus. 60 In both cases, coherent speech products could be understood as individual instances of communication, with the compelled speech taking place outside the parameters of the precisely defined speech act. But the Court took opposite routes. In FAIR , the Court identified the relevant speech narrowly, as communications between law schools and prospective employers, making the compelled speech supplemental to, not an alteration of, the law schools’ speech. 61 Yet NIFLA took the opposite route, defining the relevant speech act as the totality of the clinics’ expressions. 62 The problem isn’t simply that FAIR took one approach while NIFLA took the other: it is that no principled basis seems to account for why the Court should have gone with the category of compelled speech that it chose in either case. Since the category determined the outcome in both cases, the theory of compelled speech is unintelligible if it cannot identify the category to apply.

Understanding the doctrinal distinctions between cases like NIFLA and FAIR helps sort through the Court’s decisions, but it doesn’t explain why a particular instance of compelled speech should follow one line of cases rather than the other. For that, we need something beyond mere categories. These categories would be sufficient to resolve close cases if they mapped onto the two models of the negative speech right, but many don’t. Restoring compelled speech doctrine requires recognizing that divergence. 63

II. Collapsed Categories and Divergent Harms

In the aftermath of recent First Amendment cases confirming that strict scrutiny applies to all content-based laws, commentators have warned about the capacity for the Court’s holding to sweep in similar laws that the Court might not have intended to invalidate. 64 After all, at least for the Free Speech Clause, the Court’s strict scrutiny rules are essentially per se invalidations. 65 When the Court upholds a law against a First Amendment challenge, it tends to do so by finding that a lower level of scrutiny is appropriate. 66 The level of scrutiny that attaches is therefore the principal determinant of how a First Amendment claim will be decided. 67 That standard of scrutiny is justified only to the extent that it actually tracks the First Amendment values implicated by the law. 68 Current compelled speech doctrine tends to apply the presumptive unconstitutionality rule reserved for content-based regulations whenever laws alter the content of speech.

However, the Court is wrong to treat all content alteration as per se invalid. As this Part will show, the two models of the negative speech right serve as metrics for the relevant First Amendment concerns, helping to identify when compelled speech warrants heightened scrutiny and when it does not.

A. Why Strict Scrutiny for Content-Based Laws?

Although the Court has provided several justifications for the First Amendment’s suspicion of content-based regulations, at their core the justifications derive from a concern about speech suppression. When acting as sovereign, the government may seek “to suppress unpopular ideas or information.” 69 Of course, ideas might be unpopular because they carry no value or otherwise cause more harm than benefit. But the government should not be making that determination through “invidious discrimination of disfavored subjects.” 70 The ideas that a government is likely to disfavor, no doubt, are those that pose a threat to the government. The concern about censorship is thus a concern about the government insulating itself: if the government attempts to prescribe orthodoxy then it will prescribe itself as that orthodoxy. 71 The idea is democratic. For the people to select the government, rather than the government selecting itself, the people must be able to express criticism of the government along political, social, and economic dimensions. 72 Such criticism is required in a democracy. 73

Not every content-based law will result in such orthodoxy. That isn’t the concern. The concern is the risk of insulation in itself, which is inherent to content regulation. 74 This risk formed the theory on which the Reed Court rejected the Ninth Circuit’s holding that the content-based concern was the government’s intent to discriminate, the absence of which could justify lower scrutiny for content-based laws. 75 Intent to discriminate or not, the risk is palpable that sanctioning a nondiscriminatory content-based law could legitimate future attempts at suppressing disfavored ideas. 76 Strict scrutiny is therefore warranted to render content-based regulations per se invalid. 77

The Court has offered other justifications for its suspicion of content-based regulations, but they either collapse into the democratic concern or are otherwise incomplete. In the marketplace of ideas, content-based prohibitions circumscribe the ability of society to “preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” 78 This value seems inseparable from the democratic theory concern. After all, the model doesn’t describe much: most topics of public speech lack “truth” in the objective sense, and those that have it rarely benefit from a widespread attempt to chip away at the falsity. Thus, the model is accurate as a descriptive matter only if one understands the relevant “truth” to be that which people decide to be true. 79 Seen in this light, the marketplace of ideas, though perhaps epistemologically, even psychologically, valuable, 80 is little more than a tautology unless aimed at the value of self-government. That value lies in allowing the people to come to conclusions about political, social, and economic ideas, free from government orthodoxy. 81 Any other approach to this interest seems unrelated to the compelled speech context. 82 In other words, the concern boils down once more into democratic distrust of government insulation: if truth is nothing but what the people widely accept as being true and act on in public life, then the people, and not the government, should decide the content of those political, social, and economic ideas.

Perhaps, though, the real concern underlying the per se invalidation is a speaker-based autonomy value. That is, maybe the search for truth is itself a First Amendment value. The Court has intimated as much at times, suggesting that content-based prohibitions are suspect because they inhibit “democratic self-government.” 83 However, the actual meaning of this phrase is opaque. If it refers to the notion that the government should not be the one dictating social values because it risks insulating the government from the people, then it is the same democracy-enhancing concern described above. If it is a more general concern about autonomy and the ability to participate freely in public life, then it fails to justify the invalidation rule applied to content-based regulations.

In short, the presumptive invalidity for content-based regulations derives from the democracy-enhancing concern about the government suppressing ideas. Whether as a means for government to insulate itself from criticism or otherwise control the dominating ideas, content-based speech prohibitions always heighten the risk of government censorship and thereby merit a rule of strict scrutiny.

B. Compelled Speech Alteration and the Speech Medium

Reorienting compelled speech around the two models of the negative speech right reveals that the Court’s rule for content-based regulations does not automatically apply to those circumstances in which the compelled speech alters the speech content.

At the heart of the Court’s content-based rule is a concern about the government suppressing speech. That concern aligns with the speech restriction model of the right to not speak. In those cases, compelling speech functions to suppress speech, and it will often do so on a content-specific basis. 84 To the extent that compelled speech stops speakers from expressing what they wish to say, it functions as a restriction on speech precisely as though the government had directly prohibited speech. 85 In those circumstances, it makes sense to treat interferences with coherent speech products — that is, compelled alterations of speech — as speech restrictions. The concern about the government suppressing speech bears out in reality. By altering what can be said, the government is, in fact, suppressing speech. 86

But collapsing the category of speech alterations into content-based regulations writ large ignores the substantial degree to which speech content can be altered without implicating the concerns of the speech restriction model. After all, compelled speech principally functions to prohibit speech where the speech medium is meaningfully limited. Outside of those circumstances, when the speech medium is not meaningfully limited, speech compulsions do not restrict speech. 87 The speaker can still say everything that she wants to say. Moreover, she can distinguish herself from the compelled speech, or present so much oppositional speech of her own that little of the compelled speech remains. 88 The government simply cannot suppress disfavored ideas when the speaker is free to counter, drown out, distinguish, or undermine the compelled speech. Moreover, not every compelled speech alteration that restricts speech does so by reaching the limits of speech permitted by the medium. 89 In each instance, the question of content regulation to ask is whether the speech compulsion is restricting speech. 90 While the specifics of the speech medium are not the only determinant factors in answering this question, 91 they will often be central. 92

As such, the Court is in error when it collapses the category of interference with coherent speech products into content-based regulations, subject to strict scrutiny like other laws in that category. The First Amendment justification for the strict scrutiny rule of content-based regulations is gone from these circumstances. The problem is not simply that which is endemic to prophylactic rules 93 — namely, that the rules will result in some false positives by invalidating laws that do not actually create the harm about which the Court is concerned. 94 As discussed above, the per se invalidation for content-based regulations has no false positives because the harm done by such laws results from the laws’ very existence. 95 But applying the prophylactic rule for content-based regulations to compelled speech without a meaningful limitation on the speech medium does not implicate the same First Amendment values whatsoever. 96

This is not to say that every application of the content-based presumptive unconstitutionality rule to nonrestrictive speech alteration laws will improperly invalidate those laws. The rule may invalidate nonrestrictive speech alteration laws that would have been invalidated if reviewed under a doctrine properly sensitive to the correct model of the negative speech right. The point is simply that such overlap is entirely random.

Accounting for the material conditions of the speech medium in question is particularly important for compelled internet speech. 97 The Court has recognized the importance of the internet to contemporary discourse. 98 The next step will be to understand the balance of interests as manifested in internet speech, as distinct from analog speech arenas around which contemporary doctrines have been fashioned. Internet speech differs from prior speech situations in important respects. 99 Most importantly, the internet creates a problem of audience and attention scarcity, but remedies any conceivable problem of speech scarcity. 100 Today’s internet speech problems are fundamentally problems not of speech suppression but of speech surplus. 101 The repeated claim of the remedy for bad speech being more speech 102 is actually possible on the internet as perhaps the only speech medium not restricted in speech availability. 103 The Court’s First Amendment analysis should not blind itself to that fact.

C. Nonrestrictive Speech Alteration

Compelled alterations of speech that fail to meaningfully restrict speech are not without their First Amendment harms. Yet the harm is not the same as when such laws do, in fact, restrict speech. In the latter circumstance, the concern about government suppressing disfavored ideas is a live one, and adopting a rule of per se invalidation for such laws is appropriate. But where no such concern applies, adopting that invalidation rule is inappropriate; it becomes a solution untethered from the applicable problem, a cure unaligned with the relevant illness.

What is the harm of nonrestrictive speech alteration, then? It is the same harm as the one befalling the speech production model of the negative speech right. One could interpret Justice Jackson’s appeal to the constitutional constellation in Barnette , which echoes the speech production model, as deriving from a suspicion that the government may compel conformity to a particular ideology. 104 That prescription raises the same suspicion of government insulation at work as do content-based regulations. However, this explanation faces a problem: pure compelled speech raises constitutional concerns regardless of whether the speaker compelled into speech agrees or disagrees with the ideology expressed in the compelled speech. If the concern is that the government is attempting to prescribe orthodoxy, then that concern would have little relevance where the speaker already adheres to that orthodoxy. The Court has insisted that the problem with pure compelled speech does not depend on the speaker’s opposition to the compelled ideology. 105 Rather, the point is that the speaker should be free to come to that set of ideas on her own, free from government compulsion. 106

Instead, underlying the category of pure compelled speech is the principle of speaker autonomy. Freedom of speech protects a correlative right to remain silent insofar as a compulsion to speak would mean that such speech is not done freely. That itself is the harm — the inability of the speaker to decide what to say. 107 Nothing is directed toward the health of a democratic polity or the search for truth, but simply the exercise of a speaker’s autonomy protecting the capacity to speak freely in the literal sense. 108 The first state-based cases of compelled speech, involving employers’ service letters, derive from this principle, 109 and it is the best explanation for the rest of the category as it has arisen in the Supreme Court. 110

Similarly, when compelled speech alters the content of speech without restricting what can be said, the applicable concern is that of harm done to the speaker’s autonomy. She no longer has the freedom to say what she wishes to say and nothing more. But the first step is to realize that this autonomy concern is indeed the implicated interest. Any overlap in outcome with the concern about government suppressing speech is purely happenstance. The task of fixing compelled speech doctrine is to recognize the variable circumstances in which the compulsion arises and that the relevant constitutional values differ across those dimensions. 111

NIFLA again demonstrates the point. The Supreme Court may not have been wrong to invalidate the FACT Act as a compelled disclosure burdening the First Amendment interests of the crisis pregnancy clinics; the clinics’ expression differed from what they would have expressed in the absence of the disclosure requirement. But the Court was wrong to imagine that the law was content-restrictive. Employees at the clinics were free to tell patrons anything they liked. The speech medium likely suffered some meaningful limitation by displaying the government’s brochures; patrons spent a limited amount of time at the clinics, and the clinics had only so much interior space to communicate their ideologies. But this limitation on what the clinics affirmatively wished to say was negligible. If the targeted speech content that California sought to suppress was the position adhered to by the crisis clinics, 112 one can only conclude that the state failed, as the clinics could still say whatever they wished. The FACT Act did amount to a state preference for one position with respect to abortion information, but the state can take sides on policy issues. 113 The question is whether that nonneutrality amounted to either an attempted or actual suppression of speech. The inevitable conclusion is that it did not. After abandoning the notion that content alteration is content regulation, nothing remains of the concern that justifies applying the per se invalidation of content-based regulations to California’s FACT Act.

Still, the FACT Act implicated some First Amendment harm: by forcing the clinics to provide information that they would not otherwise have provided, the law impacted the clinics’ ability to promote their ideology on their own terms. Under the Court’s precedents, disagreement with the message contained in the compelled speech is not relevant to the autonomy concern, but perhaps the autonomy infringement was more substantial than normal. Or perhaps it wasn’t and this was an ordinary, run-of-the-mill disclosure law whose observance comes with operating an institution open to the public. Yet the question of whether the FACT Act impermissibly burdened the clinics’ autonomy is distinct from whether it restricted speech. By glossing over the fact that the speech medium wasn’t meaningfully limited, the NIFLA Court applied a prophylactic rule for weeding out speech suppression where no First Amendment concern of speech suppression was viable. In other words, the case represents total incongruence between First Amendment harm and First Amendment protection.

The difference is more than academic. As explained above, the Court has granted the government greater latitude when it has sought to compel pure speech than when it has compelled content-based alterations to coherent speech products. 114 Of course, the Court remains suspicious of pure speech compulsions that involve requirements to affirm a particular ideology 115 or that involve compelling the hosting of third-party speech in a viewpoint-discriminatory way. But where the pure speech compulsion is factual, or involves hosting the speech of another private party selected in a viewpoint-neutral manner, the Court is often willing to uphold such regulations. 116 Certainly it has been more willing to inquire into the actual harm done to autonomy. 117

It follows that, as with ordinary pure speech compulsions, compulsions that alter the content of a coherent speech product but that do not seriously implicate speaker autonomy should be granted greater constitutional leeway. In such circumstances, the issue is not whether the law alters the content of speech; every law involving a coherent speech product will alter the content of speech, by definition. If the changed content does not restrict or prohibit any speech, the law of content-based regulation is inapplicable. What should apply instead in such situations is the Court’s more lenient, autonomy-based approach.

III. Tomorrow’s Talkers and Compelled Speech

One reason for doctrine’s inevitable incongruence with reality is that it bears the unenviable responsibility of predicting the future. 118 To the extent that the creation of constitutional doctrine resembles common law adjudication, constitutional doctrine resolves present disputes in the shadow of that which doesn’t exist yet. 119

Nowhere is this shifting landscape more apparent than in constitutional cases involving new technologies. 120 The Court has described itself as proceeding cautiously, which it takes to mean erring on the side of strict rules favoring speech. 121 But maintaining the role of speech as a defender of democracy requires not just blanket protection of speech but also recognition of the limits of protected speech. Unable to prohibit internet speech, governments have instead sought to use the limitless speech medium of the internet to combat its own vices. 122 Fake news or attempts to capitalize on invisible algorithms that create the architecture for information access cannot safely be prohibited, 123 but perhaps they can be mitigated through transparency obligations and disclosure laws. 124 This is not to say that such compelled speech must be permissible. Yet the importance of these laws to the health of a functional modern democracy 125 at least requires a compelled speech doctrine that responsibly considers their permissibility. With proper sensitivity to implicated values, such a doctrine invalidates what is impermissible and leaves standing that which does not threaten First Amendment values but instead functions only to combat toxic speech. 126

NIFLA did not involve the internet, but its refusal to separate the speech act from the speech medium means that its strict rule readily bears upon the analysis of compelled internet speech. And, as lower courts have begun to demonstrate, NIFLA ’s identification of the relevant coherent speech product with the totality of the speech has led to use of the rule where the relevant concern will not be present. This Part explores this phenomenon as it intersects with new frontiers of internet speech. It concludes by attempting to reorient the analysis to the two models of the negative speech right.

A. The Error Demonstrated

This Note began by recounting the recent efforts states have undertaken to combat foreign interference in American elections. We now are in a position to see the Fourth Circuit’s decision in Washington Post v. McManus 127 as doctrinally correct, which demonstrates the doctrine’s misalignment.

The Maryland law at issue created disclosure obligations for online platforms with at least 100,000 unique monthly visitors and that published paid political advertisements. 128 In signing the bill, the governor expressed constitutional concerns about the disclosure obligations, 129 as did several newspapers, which challenged two provisions of the disclosure obligations under the First Amendment immediately after the law’s passage. 130 One provision was a “publication requirement” that obliged online platforms to post information about political ads they displayed on their websites — including the identity of the purchaser, the people controlling the purchaser, and the amount paid for the ad. 131 Under the publication requirement, that information had to be kept available on the platforms’ websites for at least a year following the election. 132 The other provision was an “inspection requirement” that obliged platforms to collect records on their political ad purchasers, maintain them for at least a year after the election, and make them available to the State Board of Elections upon request. 133

The Fourth Circuit invalidated both provisions as violations of the “most basic First Amendment principles” — including those pertaining to compelled speech. 134 Both provisions “force[d] elements of civil society to speak when they otherwise would have refrained,” and that compulsion compromised the First Amendment. 135 In particular, by obliging the platforms to make readily available on their websites information about the purchasers of political ads, Maryland’s law “force[d] news outlets to publish certain information on their websites and,” as a result, “interfere[d] with the content of a newspaper or the message of a news outlet.” 136 Citing NIFLA , the panel applied heightened scrutiny and invalidated both provisions as unjustified alterations of speech. 137

NIFLA ’s error runs rampant throughout the Fourth Circuit’s panel opinion. The critical misstep was to classify the entire website as the coherent speech product. After that, the case decided itself. If the relevant speech product is the entire website, then any compelled speech automatically changes the speech content and therefore constitutes a content-based regulation. The error is even more apparent than in NIFLA , as the internet lends itself to near limitless amounts of speech. The provisions therefore permitted the platform, compelled into speech, to make the disclosed information available on the website without stopping it from rendering available any other information that it wanted to share. As a result, the law raised zero concern of speech suppression, only of speaker autonomy. 138 But this is not the harm that justifies the content-based regulation rule of per se invalidation: it is the harm that admits of a more lenient First Amendment analysis outside of a few circumstances that render the threat to autonomy substantial.

The panel ignored this incongruence. Instead, after identifying the relevant coherent speech product as the entire website, any compelled speech necessarily altered the content of the speech and thereby triggered strict scrutiny as a content-based regulation. 139 The fact that the disclosure took place on the internet, rather than in a newspaper or a parade, made no difference to the panel. 140 That is, it used a strict rule of per se invalidation to avoid the risk of government speech suppression because of a tangential threat to the platforms’ autonomy. 141

B. Realigning Doctrine and Values

By now, the proper mode of analysis for laws like the one in McManus should be clear. The question is not whether the compelled disclosure changes the content of the speech. Unless that compulsion functions to compel silence through limitations on the speech medium, the constitutional infirmity of speech compulsions that change the content of the speech is directly proportional to the degree of harm done to speaker autonomy. Where that harm is minimal, even negligible, then the applicable First Amendment rule should account for that.

The Maryland law required online platforms to make available information pertaining to their political ad purchasers and to keep that information available for the State Board of Elections. Those compulsions affected the content of the platforms’ speech, but they did not stop the platforms from engaging in the speech that they wished to engage in. The infiniteness of the internet medium supporting the platforms’ speech meant that the law at issue did not stop the platforms from saying anything. Understanding the law as a content-based regulation subject to strict scrutiny was therefore inappropriate; any risk of the government suppressing speech or using the law as precedent for future speech suppression was foreign to the provisions.

To what extent did the publication and inspection requirements strike at the autonomy interest protected by the First Amendment? No more than minimally. They did not involve affirming a government-issued ideology 142 or supporting the speech of another private speaker on a viewpoint-discriminatory basis selected by the government. 143 Rather, the provisions were as innocuous in their effect on speaker autonomy as one can imagine. Once platforms posted the information to their websites, they did not need to revisit those pages or that information unless asked to do so by the State Board of Elections. Moreover, the revealed information pertained principally to the ad purchasers, with minimal expressive relevance to the platforms. Given the amount of speech that online platforms can support, the platforms could drown out their compelled disclosures or otherwise distinguish themselves from that forced speech. 144 A still better response would be for the platforms to just ignore the speech once made. Far from Barnette or Wooley , and even less intrusive to autonomy than FAIR , the function of the law was to make information available with a negligible effect on speaker autonomy, and given the digital medium a compulsion with less effect on speech is difficult to imagine.

Without a significant autonomy interest implicated, a court should have had no difficulty upholding the publication and inspection provisions of Maryland’s compelled disclosure law. Reaching that point, however, required recognizing just how minimal the First Amendment interest implicated was. To some extent, this orientation stands at odds with the notion of a prophylactic constitutional rule. Yet the sense in which it does not lies in the willingness to ensure not that the rule perfectly calibrates costs and benefits, but that the doctrine as a whole aims at the relevant First Amendment interest.

Not everything about the free speech landscape has changed with the internet; the internet has merely made salient what was already present. 145 The idea that NIFLA ought to have recognized how minimally the FACT Act implicated the First Amendment becomes self-evident when applied to the internet in cases like McManus . With that application comes the associated conclusion that the negative speech right simply carries a different significance on the internet than in a newspaper or a parade. In those contexts, compelled speech is not without constitutional infirmity, but it is a different infirmity. If compelled speech doctrine is to carry coherence, the relevant differences in the underlying speech mediums are a requisite component of the analysis. They are more than differentiating facts: they variously implicate harms according to the two models of the right to not speak. 146 Courts would do well to recognize the distinction as internet speech increasingly involves speech compulsions rather than direct speech prohibitions. 147

^ Eugene Volokh, The First Amendment: Problems, Cases, and Policy Arguments 546 (2001) (quoting Joseph H. Sommer, Against Cyberlaw , 15 Berkeley Tech. L.J. 1145, 1161 (2000)).

^ See Md. Code Ann., Elec. Law § 13-405 (West 2020); Democracy Protection Act, 2018 N.Y. Sess. Laws 358 (McKinney) (codified as amended at N.Y. Elec. Law § 14-100, -106–07, -126 (McKinney 2020)); 2018 Wash. Sess. Laws 2453.

^ See Wash. Post v. McManus, 355 F. Supp. 3d 272, 278 (D. Md. 2019).

^ Louis D. Brandeis, Other People’s Money and How the Bankers Use It 92 (1914).

^ Wooley v. Maynard, 430 U.S. 705, 714 (1977) (first citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 633–34 (1943); and then citing id. at 645 (Murphy, J., concurring)).

^ See, e.g. , Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013); Knox v. SEIU, Local 1000, 567 U.S. 298, 309 (2012) (“The government may not . . . compel the endorsement of ideas that it approves.”); Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (“[F]reedom of speech prohibits the government from telling people what they must say.”); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 573 (1995); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796–97 (1988); Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 9 (1986); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559 (1985); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 256 (1974).

^ See Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2376 (2018).

^ See Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2463 (2018).

^ See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1744–45 (2018) (Thomas, J., concurring in part and concurring in the judgment); see also Brush & Nib Studio, LC v. City of Phx., 448 P.3d 890, 896 (Ariz. 2019); Leslie Kendrick, A Fixed Star in Shifting Skies: Barnette and Civil Rights Law , 13 Fla. Int’l U. L. Rev. 729, 739–40 (2019). More broadly, compelled speech is central to today’s deregulatory First Amendment. See Charlotte Garden, The Deregulatory First Amendment at Work , 51 Harv. C.R.-C.L. L. Rev. 323, 339 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 197; Morgan N. Weiland, Expanding the Periphery and Threatening the Core: The Ascendant Libertarian Speech Tradition , 69 Stan. L. Rev. 1389, 1466–67 (2017).

^ See Larry Alexander, Compelled Speech , 23 Const. Comment. 147, 161 (2006); Steven H. Shiffrin, What Is Wrong with Compelled Speech? , 29 J.L. & Pol. 499, 515–16 (2014) (discussing elements of compelled speech that the Court has found constitutionally suspect); Nat Stern, The Subordinate Status of Negative Speech Rights , 59 Buff. L. Rev. 847, 849 (2011) (noting that “the underlying idea [of a negative speech right] has lost much of its coherence and explanatory power”).

^ Volokh, supra note 1, at 546; see also David B. Gaebler, First Amendment Protection Against Government Compelled Expression and Association , 23 B.C. L. Rev. 995, 1002 (1982); Leslie Gielow Jacobs, Pledges, Parades, and Mandatory Payments , 52 Rutgers L. Rev. 123, 131 (1999); Stern, supra note 10, at 905 (“[N]egative speech rights have followed an unusually unsteady trajectory.”).

^ William Baude, Adjudication Outside Article III , 133 Harv. L. Rev. 1511, 1513 (2020); see Robert Post, Recuperating First Amendment Doctrine , 47 Stan. L. Rev. 1249, 1255 (1995) (“First Amendment analysis is relevant only when the values served by the First Amendment are implicated.”).

^ See Richard L. Hasen, Cheap Speech and What It Has Done (to American Democracy) , 16 First Amend. L. Rev. 200 , 202 (2018); see also Eugene Volokh, Cheap Speech and What It Will Do , 104 Yale L.J. 1805, 1819 (1995).

^ See Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society , 79 N.Y.U. L. Rev. 1, 7 (2004).

^ See Sarah C. Haan, The Post-truth First Amendment , 94 Ind. L.J. 1351, 1393–95 (2019) (discussing the difficulties of squaring traditional First Amendment doctrine with modern speech).

^ See, e.g. , Shiffrin, supra note 10, at 515–16.

^ See Eugene Volokh, Essay, The Law of Compelled Speech , 97 Tex. L. Rev. 355 (2018) (attempting to distill compelled speech doctrine into cohesive black letter law).

^ See id. at 357–58.

^ See Frederick Schauer, Categories and the First Amendment: A Play in Three Acts , 34 Vand. L. Rev. 265, 276–77 (1981).

^ See Caroline Mala Corbin, Compelled Disclosures , 65 Ala. L. Rev. 1277, 1351 (2014). For this reason, Volokh has called the cases of compelled speech that roughly map onto the speech production model “pure speech compulsions.” Volokh, supra note 17, at 358.

^ See Pub. Utils. Comm’n v. Pollak, 343 U.S. 451, 467–68 (1952) (Douglas, J., dissenting).

^ 319 U.S. 624 (1943).

^ Id. at 626.

^ Id. ; see also Opinions of the Justices to the Governor, 363 N.E.2d 251, 255 (Mass. 1977) (noting that a proposed bill requiring teachers to lead students in the Pledge of Allegiance would violate the teachers’ negative speech rights).

^ 430 U.S. 705 (1977).

^ Id. at 717 (describing the First Amendment as protecting the “right to avoid becoming the courier for [the government’s] message”).

^ See, e.g. , Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2464 (2018).

^ See, e.g. , PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 85–88 (1980) (distinguishing compelled hosting of government and private speech).

^ See, e.g. , Elane Photography, LLC v. Willock, 309 P.3d 53, 64 (N.M. 2013) (upholding an antidiscrimination law against a compelled speech challenge).

^ W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

^ See Corbin, supra note 20, at 1298 (“A person cannot be said to be autonomous in body if forced to speak when she would rather stay silent.”).

^ Helen Norton, The Government’s Speech and the Constitution 203 (2019).

^ See PruneYard , 447 U.S. at 97–98 (Powell, J., concurring in part and concurring in the judgment); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235 (1977); see also Elster v. City of Seattle, 444 P.3d 590, 594–95 (Wash. 2019) (distinguishing compelled subsidy cases on the ground that Seattle’s Democracy Voucher Program did not require taxpayers to individually associate with a particular political message).

^ See Seana Valentine Shiffrin, What Is Really Wrong with Compelled Association? , 99 Nw. U. L. Rev. 839, 854, 860 (2005) (describing the autonomy harms that stem from compulsory recitation of the Pledge of Allegiance).

^ See, e.g. , Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 62 (2006); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985).

^ Volokh, supra note 17, at 361. Typically, they involve speech compulsions that alter the content of speech already being made. See id.

^ See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 218 (2013).

^ In this respect, the Court spoke too broadly in Zauderer v. Office of Disciplinary Counsel , 471 U.S. 626 (1985), by identifying “material differences between disclosure requirements and outright prohibitions on speech.” Id. at 650. True, disclosures and prohibitions are often different. However, this model shows the manner in which disclosures can function as prohibitions.

^ 418 U.S. 241 (1974).

^ 487 U.S. 781 (1988).

^ 515 U.S. 557 (1995).

^ Tornillo , 418 U.S. at 244, 258.

^ Id. at 258.

^ Id. at 256–57.

^ See Riley , 487 U.S. at 795–97.

^ See Hurley , 515 U.S. at 572–78. That is, the Court presumed a limited amount of space in the parade; admitting the challengers would require excluding other participants. See id. at 574–75.

^ See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015).

^ 135 S. Ct. 2218.

^ To be sure, content-based restrictions were often subject to strict scrutiny before Reed . See, e.g. , Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 573 (1987) (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)); cf. Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny , 144 U. Pa. L. Rev. 2417, 2417 (1996). Before Reed , however, the Court had suggested that a content-based law with an innocuous legislative intent might not trigger strict scrutiny — a possibility Reed removed. See Genevieve Lakier, Reed v. Town of Gilbert, Arizona, and the Rise of the Anticlassificatory First Amendment , 2016 Sup. Ct. Rev. 233, 235.

^ See Reed , 135 S. Ct. at 2228. Apparently neutral laws can still be susceptible to strict scrutiny as content-based regulations if they conceal a purpose to discriminate against speech based on content. Id. at 2228–29.

^ See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988) (“Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech. We therefore consider the Act as a content-based regulation of speech.”); Corbin, supra note 20, at 1283.

^ 138 S. Ct. 2361 (2018).

^ Cal. Health & Safety Code Ann . §§ 123470–72 (West 2020).

^ See NIFLA , 138 S. Ct. at 2369.

^ See id. (explaining that the government-drafted notice “must be posted in the waiting room, printed and distributed to all clients, or provided digitally at check-in”).

^ Id. at 2378. Technically, NIFLA did not apply strict scrutiny because it found the law invalid under intermediate scrutiny. However, the Court made its ruling after finding the law to be content-based and noting that all content-based regulations trigger strict scrutiny. Id. at 2371, 2375.

^ 547 U.S. 47 (2006).

^ See Brief for the State Respondents at 42–47, NIFLA , 138 S. Ct. 2361 (No. 16-1140) (arguing that if the Court declined to dispose of the case under Zauderer , then FAIR should resolve it).

^ See FAIR , 547 U.S. at 54.

^ Id. at 61–62.

^ See NIFLA , 138 S. Ct. at 2371.

^ Cf. Post, supra note 12, at 1255.

^ See, e.g. , Lakier, supra note 49, at 258–59; Note, Free Speech Doctrine After Reed v. Town of Gilbert, 129 Harv. L. Rev. 1981, 1998 (2016); see also Adam Liptak, Court’s Free-Speech Expansion Has Far-Reaching Consequences , N.Y. Times (Aug. 17, 2015), https://nyti.ms/1NAPcQd [ https://perma.cc/X7SZ-NKMR ]. NIFLA has received a similar response to Reed . See, e.g. , Erwin Chemerinsky & Michele Goodwin, Constitutional Gerrymandering Against Abortion Rights: NIFLA v. Becerra, 94 N.Y.U. L. Rev. 61, 111–12 (2019); see also Marc O. DeGirolami, The Sickness unto Death of the First Amendment , 42 Harv. J.L. & Pub. Pol’y 751, 796–97 (2019).

^ Only five cases have triggered strict scrutiny and survived the analysis. See Williams-Yulee v. Fla. Bar, 575 U.S. 433 (2015); Holder v. Humanitarian Law Project, 561 U.S. 1 (2010); Burson v. Freeman, 504 U.S. 191 (1992); Austin v. Mich. Chamber of Commerce, 494 U.S. 652 (1990); Buckley v. Valeo, 424 U.S. 1 (1976). For a discussion of the three earliest cases , see Volokh, supra note 49.

^ See, e.g. , Morse v. Frederick, 551 U.S. 393, 408–10 (2007); Garcetti v. Ceballos, 547 U.S. 410, 423, 425–26 (2006). The widespread talk of a “weaponiz[ed] First Amendment,” Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting), often gives the impression that First Amendment protection has uniformly ballooned. See, e.g. , Genevieve Lakier, The First Amendment’s Real Lochner Problem , 87 U . Chi. L. Rev . (forthcoming 2020) (manuscript at 65) (on file with the Harvard Law School Library); Robert Post & Amanda Shanor, Adam Smith’s First Amendment , 128 Harv. L. Rev. F. 165, 181–82 (2015); Shanor, supra note 9, at 137; Weiland, supra note 9, at 1393. Given that the Court does often uphold speech restrictions, the real problem seems to be the inconsistency with which it grants or withholds strong free speech rights.

^ See Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis , 85 Calif. L. Rev. 297, 305 (1997).

^ See generally David A. Strauss, The Ubiquity of Prophylactic Rules , 55 U. Chi. L. Rev. 190, 207 (1988) (noting that constitutional doctrine consists of “prophylactic rule[s]” that serve as proxies for constitutional values and principles).

^ Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).

^ City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 424 n.19 (1993); see Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 275 (1964) (noting that, for James Madison, “the censorial power is in the people over the Government, and not in the Government over the people” (quoting 3 Annals of Cong. 934 (1794)).

^ See Citizens United v. FEC, 558 U.S. 310, 340 (2010); Leathers v. Medlock, 499 U.S. 439, 448–49 (1991).

^ See Sorrell v. IMS Health Inc., 564 U.S. 552, 583 (2011) (Breyer, J., dissenting); Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991).

^ See McCutcheon v. FEC, 134 S. Ct. 1434, 1441–42 (2014) (“[T]hose who govern should be the last people to help decide who should govern.”); Cincinnati , 507 U.S. at 420.

^ See Turner , 512 U.S. at 641.

^ Reed v. Town of Gilbert, 135 S. Ct. 2218, 2230 (2015); cf. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986).

^ See Hill v. Colorado, 530 U.S. 703, 743 (2000) (Scalia, J., dissenting).

^ See Strauss, supra note 68, at 197 (noting that the per se invalidation of content-based regulations is purposely overprotective); see also Matthew Tokson, Blank Slates , 59 B.C. L. Rev. 591, 613 (2018) (“The more that a proxy fails to encompass significant normative considerations, the less effective it will be . . . .”).

^ McCullen v. Coakley, 573 U.S. 464, 476 (2014) (quoting FCC v. League of Women Voters, 468 U.S. 364, 377 (1984)).

^ See R.H. Coase, Advertising and Free Speech , 6 J. Legal Stud. 1, 27 (1977). Still others defend the marketplace as a search for an objective theory of truth. See, e.g. , Kent Greenawalt, Free Speech Justifications , 89 Colum. L. Rev. 119, 130 (1989). This Note doesn’t mean to evaluate that assertion here; it aims not to argue about organizing principles justifying freedom of speech, but rather to identify the principles that explain the Court’s content-regulation rules. Thus, the objective-truth conception of the marketplace theory has little application to political or social ideas that lack objective “truth,” and for those ideas that could have an objective truth, the model seems empirically inaccurate. See C. Edwin Baker, Scope of the First Amendment Freedom of Speech , 25 UCLA L. Rev. 964, 974–75 (1978); Daniel E. Ho & Frederick Schauer, Testing the Marketplace of Ideas , 90 N.Y.U. L. Rev. 1160, 1160 (2015). In fact, if the aim was to reach an objective truth, the prohibition on content-based restrictions, especially those that function as speaker-based distinctions, see, e.g. , Sorrell v. IMS Health Inc., 564 U.S. 552, 557 (2011), seems diametrically opposed to that end. See Kathleen M. Sullivan, Discrimination, Distribution and Free Speech , 37 Ariz. L. Rev. 439, 445 (1995); Ari Ezra Waldman, The Marketplace of Fake News , 20 U. Pa . J. Const. L. 845, 866 (2018).

^ See Learned Hand, Sources of Tolerance , 79 U. Pa. L. Rev. 1, 13–14 (1930).

^ See Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2375 (2018) (“[T]he people lose when the government is the one deciding which ideas should prevail.”).

^ See Gaebler, supra note 11, at 1003 (“[W]hen government compels rather than prohibits expression there is not the same conflict with the policy of preserving an opportunity for full and free discussion.”).

^ Reed v. Town of Gilbert, 135 S. Ct. 2218, 2233 (2015) (Alito, J., concurring) (citing Consol. Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 537 (1980)).

^ See, e.g. , Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 218 (2013).

^ Even without an outright prohibition, compelled speech can operate as a direct burden on speech to discourage its expression, which is the same. See, e.g. , Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 10 (1986).

^ See, e.g. , Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 256–57 (1974) (“The first phase of the penalty resulting from the compelled printing of a reply is exacted in . . . taking up space that could be devoted to other material the newspaper may have preferred to print.” Id. at 256.).

^ The First Amendment is often sensitive to the material nature of the speech medium. Compare Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390–92 (1969) (suggesting compelled carry is less concerning for cable TV), and Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 656–57 (1994) (permitting compelled carry for cable TV), with Tornillo , 418 U.S. at 258 (rejecting compelled carry for newspapers). Different communicative media involve different constraints so as to change the effect of speech regulation across those media. See Volokh, supra note 13, at 1844. There is no reason for compelled speech to be an exception to the ordinary tailoring of First Amendment doctrine to the regulated medium.

^ See Gaebler, supra note 11, at 1003 (“Compulsion to express a particular view does not by itself preclude the opportunity to disavow whatever one has been compelled to express.”).

^ See, e.g. , McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 348–49 (1995) (describing the harm of compulsory self-identification on political pamphlets in terms that track the production model of the negative speech right).

^ One could argue that answering this question requires making precisely the same determination about what the relevant medium is that led to ambiguity in section I.C above. To some extent, this criticism is true, but the theory advanced here removes the significance of the latitude that remains in selecting the speech medium. Focusing on the harm in NIFLA and FAIR , for example, doesn’t permit a definition of the speech medium that warrants heightened scrutiny, even if it fails to require a precise definition of the speech medium.

^ See, e.g. , Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 218–19 (2013) (finding that norms prevented speakers from correcting speech they were compelled to utter).

^ Of course, not all interference with coherent speech products on limited speech mediums gets at the speech-suppression concern. For example, nothing in this Note unsettles the longstanding permissibility of health and safety warnings or “purely factual and uncontroversial” commercial disclosures. See Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2376 (2018). Initially, it isn’t obvious that, even for limited speech mediums, such compulsions actually restrict, rather than merely alter, speech. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985). Even if they do, the only speech they conceivably “suppress,” by rendering it unavailable, is that which is confusing or deceptive — speech entitled to less constitutional protection. See In re R.M.J., 455 U.S. 191, 201 (1982); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455–56 (1978); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 772 n.24 (1976). This Note affects only compelled speech that falls outside those established exceptions to the negative speech axiom.

^ See Strauss, supra note 68, at 197.

^ Cf. Lakier, supra note 49, at 258.

^ See supra p. 2368.

^ See Schauer, supra note 19, at 286–87 (explaining the importance of distinguishing categories of speech that are qualitatively different in the type of harm they involve).

^ See Volokh, supra note 13, at 1844 (“The law of speech is premised on certain (often unspoken) assumptions about the way the speech market operates. If these assumptions aren’t valid for new technologies, the law may have to evolve to reflect the changes.”).

^ See Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017).

^ See, e.g. , Danielle Keats Citron , Hate Crimes in Cyberspace 26–27 (2014) (noting the pervasiveness of internet speech).

^ See Balkin, supra note 14, at 7; see also Mary Anne Franks, When Bad Speech Does Good , 43 Loy. U. Chi. L.J. 395, 396–97 (2012) (noting that the “sheer volume and mindlessness” of much bad internet speech has a “dilution effect” in relation to the totality of online speech, id. at 397).

^ See Tim Wu, Is the First Amendment Obsolete? , 117 Mich. L. Rev. 547, 554–58 (2018).

^ See, e.g. , United States v. Alvarez, 567 U.S. 709, 727–28 (2012).

^ This is not to say that internet speech is either unmediated or undifferentiated in the audience it reaches. See Rebecca MacKinnon , Consent of the Networked , at xxii (2012) (noting the many ways in which governments regulate internet speech by acting on online platforms with the aim of affecting downstream user speech); Jack M. Balkin, Old-School/New-School Speech Regulation , 127 Harv. L. Rev. 2296, 2309 (2014) (same).

^ See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943).

^ See, e.g. , id. ; cf. Wooley v. Maynard, 430 U.S. 705, 715 (1977).

^ See Shiffrin, supra note 34, at 854 (noting the harm compelled speech does to freedom of thought and the autonomous agent’s control over her own mind).

^ See Genevieve Lakier, Not Such a Fixed Star After All: West Virginia State Board of Education v. Barnette , and the Changing Meaning of the First Amendment Right Not to Speak , 13 Fla. Int’l U. L. Rev. 741, 744 (2019).

^ See Richard H. Fallon, Jr., Two Senses of Autonomy , 46 Stan. L. Rev. 875, 876 (1994); Martin H. Redish, The Value of Free Speech , 130 U. Pa. L. Rev. 591, 593 (1982).

^ See, e.g. , Cleveland, C., C. & St. Louis Ry. Co. v. Jenkins, 51 N.E. 811, 812–13 (Ill. 1898); Atchison, T. & S.F. Ry. Co. v. Brown, 102 P. 459, 460 (Kan. 1909).

^ See, e.g. , Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234–35 (1977); see also 2 The Writings of James Madison 186 (Gaillard Hunt ed., 1901) (“Who does not see . . . [t]hat the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?”).

^ See Robert C. Post, Subsidized Speech , 106 Yale L.J. 151, 195 (1996).

^ At oral argument, Justice Alito suggested the FACT Act had such a target, introducing a hypothetical about a law that was “neutral on its face, but . . . gee, it turns out that just about the only clinics that are covered by this are pro-life clinics.” Transcript of Oral Argument at 38, Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (No. 16-1140), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1140_lkgn.pdf [<a href=" https://perma.cc/NP3A-M98M ">https://perma.cc/NP3A-M98M">https://perma.cc/NP3A-M98M].

^ See Norton , supra note 32, at 203.

^ See, e.g. , Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 62 (2006).

^ See Torcaso v. Watkins, 367 U.S. 488, 495 (1961).

^ See Volokh, supra note 17, at 368–70.

^ See id. at 371–72.

^ See Vincent Blasi, The Pathological Perspective and the First Amendment , 85 Colum. L. Rev. 449, 467 (1985).

^ Cf. David A. Strauss, Common Law Constitutional Interpretation , 63 U. Chi. L. Rev. 877, 879 (1996).

^ See generally Ronald K.L. Collins & David M. Skover, The Death of Discourse , at xxii–xxiii (2019); M. Margaret McKeown, The Internet and the Constitution: A Selective Retrospective , 9 Wash. J.L. Tech. & Arts 133, 138 (2014).

^ See, e.g. , Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017).

^ For a discussion of net neutrality as a case study in this phenomenon, see Geoffrey A. Manne et al., A Conflict of Visions: How the “21st Century First Amendment” Violates the Constitution’s First Amendment , 13 First Amend. L. Rev. 319, 333–58 (2014).

^ A growing literature on whether prohibitions on fake news are constitutional has debated this proposition at length. See generally Waldman, supra note 79, at 862–66.

^ See generally Jack M. Balkin, How to Regulate (and Not Regulate) Social Media 18–21 (Jan. 11, 2020) (unpublished manuscript), <a href=" https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3484114 ">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3484114">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3484114 [ https://perma.cc/MKA8-Y2WE ] (noting the value of digital consumer protection laws).

^ For a summary of how misinformation threatens democracy, see Hunt Allcott & Matthew Gentzkow, Social Media and Fake News in the 2016 Election , 31 J. Econ. Persp. 211, 219 (2017).

^ See generally Nathaniel Persily, Can Democracy Survive the Internet? , 28 J. Democracy 63, 67–70 (2017). Whether disclosure laws promote healthier speech is an empirical question about how people process information. See D.J. Flynn et al., The Nature and Origins of Misperceptions: Understanding False and Unsupported Beliefs About Politics , 38 Advances Pol. Psychol. 127, 142 (2017); Brendan Nyhan & Jason Reifler, Do People Actually Learn from Fact-Checking? Evidence from a Longitudinal Study During the 2014 Campaign 1, 32 (Nov. 30, 2016) (unpublished manuscript), https://www.dartmouth.edu/~nyhan/fact-checking-effects.pdf [ https://perma.cc/2RVC-9WJN ]. Whether disclosure laws can attempt to promote healthier speech is a constitutional question.

^ 944 F.3d 506 (4th Cir. 2019).

^ Md. Code Ann., Elec. Law § 1-101(dd-1) (West 2020).

^ See 944 F.3d at 512.

^ Wash. Post v. McManus, 355 F. Supp. 3d 272, 278 (D. Md. 2019).

^ Id. at 282–83; Md. Code Ann., Elec. Law § 13-405(b)(6).

^ McManus , 355 F. Supp. 3d at 283 (citing Md. Code Ann., Elec. Law § 13-405(b)(3)(ii)).

^ Id. (citing Md. Code Ann., Elec. Law § 13-405(c)).

^ McManus , 944 F.3d at 523; see id. at 514.

^ Id. at 514.

^ Id. at 517.

^ Id. at 518, 520–23.

^ The panel did explain that one effect of the disclosure obligations falling on the online platforms would be to make hosting political ads more expensive as compared to ads of other content, possibly leading platforms to decline political ads altogether. Id. at 516–17. This concern could touch on the speech restriction model of the negative speech right given that burdening or chilling speech can be the same as suppressing it outright. See Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 167–68 (2002); Hannegan v. Esquire, Inc., 327 U.S. 146, 151–52 (1946). But nothing about the panel’s eventual analysis of the First Amendment infirmity involved this concern. Indeed, the issue became apparent only after the district court had issued its opinion invalidating the law. See McManus , 944 F.3d at 516–17.

^ McManus , 944 F.3d at 517.

^ To its credit, the district court did find this fact worth a (singular) mention. Wash. Post v. McManus, 355 F. Supp. 3d 272, 300 (D. Md. 2019) (“The veritable infiniteness of cyberspace does not cure this constitutional infirmity.”).

^ McManus , 944 F.3d at 520–23.

^ Cf. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 634 (1943).

^ Cf. Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2463 (2018).

^ See generally Wu, supra note 101, at 565.

^ See Balkin, supra note 14, at 2 (“Instead of focusing on novelty, we should focus on salience.”); cf. Volokh, supra note 13, at 1843–44.

^ See generally Volokh, supra note 13, at 1844.

^ See Dawn C. Nunziato, First Amendment Values for the Internet , 13 First Amend. L. Rev. 282, 313–14 (2014).

• Constitutional Law
• First Amendment
• First Amendment: Speech

May 10, 2020

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What this handout is about

This handout will help you create an effective speech by establishing the purpose of your speech and making it easily understandable. It will also help you to analyze your audience and keep the audience interested.

What’s different about a speech?

Writing for public speaking isn’t so different from other types of writing. You want to engage your audience’s attention, convey your ideas in a logical manner and use reliable evidence to support your point. But the conditions for public speaking favor some writing qualities over others. When you write a speech, your audience is made up of listeners. They have only one chance to comprehend the information as you read it, so your speech must be well-organized and easily understood. In addition, the content of the speech and your delivery must fit the audience.

What’s your purpose?

People have gathered to hear you speak on a specific issue, and they expect to get something out of it immediately. And you, the speaker, hope to have an immediate effect on your audience. The purpose of your speech is to get the response you want. Most speeches invite audiences to react in one of three ways: feeling, thinking, or acting. For example, eulogies encourage emotional response from the audience; college lectures stimulate listeners to think about a topic from a different perspective; protest speeches in the Pit recommend actions the audience can take.

As you establish your purpose, ask yourself these questions:

• What do you want the audience to learn or do?
• If you are making an argument, why do you want them to agree with you?
• If they already agree with you, why are you giving the speech?
• How can your audience benefit from what you have to say?

Audience analysis

If your purpose is to get a certain response from your audience, you must consider who they are (or who you’re pretending they are). If you can identify ways to connect with your listeners, you can make your speech interesting and useful.

As you think of ways to appeal to your audience, ask yourself:

• What do they have in common? Age? Interests? Ethnicity? Gender?
• Do they know as much about your topic as you, or will you be introducing them to new ideas?
• Why are these people listening to you? What are they looking for?
• What level of detail will be effective for them?
• What tone will be most effective in conveying your message?
• What might offend or alienate them?

For more help, see our handout on audience .

Creating an effective introduction

Get their attention, otherwise known as “the hook”.

Think about how you can relate to these listeners and get them to relate to you or your topic. Appealing to your audience on a personal level captures their attention and concern, increasing the chances of a successful speech. Speakers often begin with anecdotes to hook their audience’s attention. Other methods include presenting shocking statistics, asking direct questions of the audience, or enlisting audience participation.

Establish context and/or motive

Explain why your topic is important. Consider your purpose and how you came to speak to this audience. You may also want to connect the material to related or larger issues as well, especially those that may be important to your audience.

Get to the point

Tell your listeners your thesis right away and explain how you will support it. Don’t spend as much time developing your introductory paragraph and leading up to the thesis statement as you would in a research paper for a course. Moving from the intro into the body of the speech quickly will help keep your audience interested. You may be tempted to create suspense by keeping the audience guessing about your thesis until the end, then springing the implications of your discussion on them. But if you do so, they will most likely become bored or confused.

For more help, see our handout on introductions .

Making your speech easy to understand

Repeat crucial points and buzzwords.

Especially in longer speeches, it’s a good idea to keep reminding your audience of the main points you’ve made. For example, you could link an earlier main point or key term as you transition into or wrap up a new point. You could also address the relationship between earlier points and new points through discussion within a body paragraph. Using buzzwords or key terms throughout your paper is also a good idea. If your thesis says you’re going to expose unethical behavior of medical insurance companies, make sure the use of “ethics” recurs instead of switching to “immoral” or simply “wrong.” Repetition of key terms makes it easier for your audience to take in and connect information.

Incorporate previews and summaries into the speech

For example:

“I’m here today to talk to you about three issues that threaten our educational system: First, … Second, … Third,”

“I’ve talked to you today about such and such.”

These kinds of verbal cues permit the people in the audience to put together the pieces of your speech without thinking too hard, so they can spend more time paying attention to its content.

Use especially strong transitions

This will help your listeners see how new information relates to what they’ve heard so far. If you set up a counterargument in one paragraph so you can demolish it in the next, begin the demolition by saying something like,

“But this argument makes no sense when you consider that . . . .”

If you’re providing additional information to support your main point, you could say,

“Another fact that supports my main point is . . . .”

Helping your audience listen

Rely on shorter, simpler sentence structures.

Don’t get too complicated when you’re asking an audience to remember everything you say. Avoid using too many subordinate clauses, and place subjects and verbs close together.

Too complicated:

The product, which was invented in 1908 by Orville Z. McGillicuddy in Des Moines, Iowa, and which was on store shelves approximately one year later, still sells well.

Easier to understand:

Orville Z. McGillicuddy invented the product in 1908 and introduced it into stores shortly afterward. Almost a century later, the product still sells well.

Limit pronoun use

Listeners may have a hard time remembering or figuring out what “it,” “they,” or “this” refers to. Be specific by using a key noun instead of unclear pronouns.

Pronoun problem:

The U.S. government has failed to protect us from the scourge of so-called reality television, which exploits sex, violence, and petty conflict, and calls it human nature. This cannot continue.

Why the last sentence is unclear: “This” what? The government’s failure? Reality TV? Human nature?

More specific:

The U.S. government has failed to protect us from the scourge of so-called reality television, which exploits sex, violence, and petty conflict, and calls it human nature. This failure cannot continue.

Keeping audience interest

Incorporate the rhetorical strategies of ethos, pathos, and logos.

When arguing a point, using ethos, pathos, and logos can help convince your audience to believe you and make your argument stronger. Ethos refers to an appeal to your audience by establishing your authenticity and trustworthiness as a speaker. If you employ pathos, you appeal to your audience’s emotions. Using logos includes the support of hard facts, statistics, and logical argumentation. The most effective speeches usually present a combination these rhetorical strategies.

Use statistics and quotations sparingly

Include only the most striking factual material to support your perspective, things that would likely stick in the listeners’ minds long after you’ve finished speaking. Otherwise, you run the risk of overwhelming your listeners with too much information.

Watch your tone

Be careful not to talk over the heads of your audience. On the other hand, don’t be condescending either. And as for grabbing their attention, yelling, cursing, using inappropriate humor, or brandishing a potentially offensive prop (say, autopsy photos) will only make the audience tune you out.

Creating an effective conclusion

Restate your main points, but don’t repeat them.

“I asked earlier why we should care about the rain forest. Now I hope it’s clear that . . .” “Remember how Mrs. Smith couldn’t afford her prescriptions? Under our plan, . . .”

Call to action

Speeches often close with an appeal to the audience to take action based on their new knowledge or understanding. If you do this, be sure the action you recommend is specific and realistic. For example, although your audience may not be able to affect foreign policy directly, they can vote or work for candidates whose foreign policy views they support. Relating the purpose of your speech to their lives not only creates a connection with your audience, but also reiterates the importance of your topic to them in particular or “the bigger picture.”

Practicing for effective presentation

Once you’ve completed a draft, read your speech to a friend or in front of a mirror. When you’ve finished reading, ask the following questions:

• Which pieces of information are clearest?
• Where did I connect with the audience?
• Where might listeners lose the thread of my argument or description?
• Where might listeners become bored?
• Where did I have trouble speaking clearly and/or emphatically?
• Did I stay within my time limit?

Other resources

• Toastmasters International is a nonprofit group that provides communication and leadership training.
• Allyn & Bacon Publishing’s Essence of Public Speaking Series is an extensive treatment of speech writing and delivery, including books on using humor, motivating your audience, word choice and presentation.

Works consulted

We consulted these works while writing this handout. This is not a comprehensive list of resources on the handout’s topic, and we encourage you to do your own research to find additional publications. Please do not use this list as a model for the format of your own reference list, as it may not match the citation style you are using. For guidance on formatting citations, please see the UNC Libraries citation tutorial . We revise these tips periodically and welcome feedback.

Boone, Louis E., David L. Kurtz, and Judy R. Block. 1997. Contemporary Business Communication . Upper Saddle River, NJ: Prentice Hall.

Ehrlich, Henry. 1994. Writing Effective Speeches . New York: Marlowe.

Lamb, Sandra E. 1998. How to Write It: A Complete Guide to Everything You’ll Ever Write . Berkeley: Ten Speed Press.

You may reproduce it for non-commercial use if you use the entire handout and attribute the source: The Writing Center, University of North Carolina at Chapel Hill

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How to Practice Right Speech

Do you have something you want to say? Nikki Mirghafori on the questions to ask yourself.

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Speech is powerful. Our words shape our minds, paving the path toward freedom or cementing habitual patterns of suffering.

A crucial part of our practice, speech is something we can engage with even on days when we cannot sit in formal meditation. Our practice with speech includes the words that we direct to ourselves (perhaps with an unkindness we’d never use with others) and the words that we write in texts and emails and on social media—words that fashion our karma and our world with such tremendous speed.

The Buddha taught both what to avoid and to cultivate. Right speech is abstaining from lying, divisive speech, abusive speech, and idle chatter. The five guidelines for well-spoken speech are: Is it timely, true, gentle, beneficial, and spoken with a mind of good-will? He gave additional consideration for speaking what is disagreeable. Beyond making sure that what we say is true and beneficial, we still must wait—out of compassion—for the appropriate time to say it.

To practice right speech, we first make an intentional commitment to the Buddha’s guidelines, both because following them has a beneficial impact on others and because they provide us with an ethical scaffold to purify our minds and actions. Then we take a breath, rest in the body, and become aware of our intentions, state of mind, and body.

If we’re moved to lie, gossip, or speak harshly, we inquire: Am I stressed? Am I motivated by greed, ill-will, desire for recognition, or fear of rejection? We reestablish our grounding through pausing and contemplating the detriments of wrong speech, then we actively reengage with wise intention and benevolence.

Let us consider each guideline:

Is It True and Factual?

The commitment to truthfulness for the purification of one’s heart-mind is so paramount that a bodhisattva’s vow to speak the truth is the sole unbreakable moral precept. Falsehoods erode trust, which is a pillar of any relationship.

The Buddha warns that one danger in telling a deliberate lie is that it’s a slippery slope to further unethical behavior. Research confirms this. In a 2016 study published in Nature Neuroscience , Tali Sharot and colleagues observed that when participants started to tell small lies, their amygdala became activated, prompting discomfort with their indiscretion. As the dishonesty snowballed, the amygdala reduced its activity, deadening the participants’ sensitivity to ethical breaches. The stunning and, perhaps, unsurprising conclusion is that our everyday actions change our physiology to be a more or less trustworthy compass.

The consideration of what is factual is an impor­tant nuance. The truth isn’t “personal,” true only because of our feelings and perceptions. It must be objectively supported.

Does It Create Harmony?

The Buddha guides us “not to tell there what we one has heard here,” and “not to break people apart.” Slanderous and divisive speech is based on hatred and ill-will, enmeshed with resentment, envy, and the intention to hurt another and win respect and support for ourselves. Involving forethought, it carries a doubly heavy karma.

Beyond avoiding divisive speech, the Buddha recommends speech that actually creates social harmony. Our speech should reconcile those who have broken apart and cement those who are united. We should delight in concord.

Is It Gentle?

Speech spoken in anger, with mean sarcasm, or with the intention to rebuke, demean, insult, or cause pain has aversion as its root. It’s often impulsive and therefore bears a lighter karmic weight than slander, but the Buddha still instructs us to abandon it. The antidote for this kind of speech is patience.

Where speaking wisely is impossible, our secondary goal becomes to cause the least harm. Cultivating the wholesome, the Buddha directs us to “speak words that are soothing to the ear, affectionate, go to the heart, polite, likable, and agreeable to the people.”

Is It Beneficial?

For monastics, any talk not associated with the dharma and the goal of the liberation is considered samphappalapa , a Pali onomatopoeia meaning idle chatter. As lay practitioners, we abide by a different standard as we engage in social conversations to build relationships. Still, it behooves us to be mindful of how we feed our mind: what we say and our media contribution and consumption habits. Are we rushing to fill an uncomfortable silence? Are we indulging in drama, getting riled up with our self-sense? Such engagements threaten to dull our spiritual sensitivities. A great acronym, from Jonathan Foust, is WAIT: “Why Am I Talking?” The Buddha instructs us to speak “words worth treasuring” that are of benefit and in service of goodness.

Am I Speaking with a Mind of Goodwill?

This guideline is often expressed in shorthand as “is it kind?” While uttering kind words is a great start, a more holistic training is to imbue our mind-heart with metta , loving-kindness. Summoning our goodwill before we speak can minimize the agitation of remorse and regret later.

Is This the Right Time?

Even after meeting all the other guidelines, we still must wait for the right time to speak, especially if our words are difficult for the hearer. For example, we may need to have a serious conversation with a friend about our relationship. What we intend to say is factual, likely to increase harmony, gentle, and beneficial, and it will be spoken with a mind of goodwill. But if our friend is sick, it’s not the right time to burden them, regardless of our desire to get the matter off our chest.

Sometimes it’s wisest to stay silent, especially in lieu of idle chatter. But lies of omission can also be committed by failing to speak. Silence isn’t always wise speech, especially in the face of injustice. Speech is a profound mirror to hold up. Let us ask ourselves: Does my speech reflect the person I think I am, or aspire to be, for the sake of myself, others, and the world?

Nikki Mirghafori

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How to write a speech that your audience remembers

Whether in a work meeting or at an investor panel, you might give a speech at some point. And no matter how excited you are about the opportunity, the experience can be nerve-wracking . 

But feeling butterflies doesn’t mean you can’t give a great speech. With the proper preparation and a clear outline, apprehensive public speakers and natural wordsmiths alike can write and present a compelling message. Here’s how to write a good speech you’ll be proud to deliver.

What is good speech writing?

Good speech writing is the art of crafting words and ideas into a compelling, coherent, and memorable message that resonates with the audience. Here are some key elements of great speech writing:

• It begins with clearly understanding the speech's purpose and the audience it seeks to engage. 
• A well-written speech clearly conveys its central message, ensuring that the audience understands and retains the key points. 
• It is structured thoughtfully, with a captivating opening, a well-organized body, and a conclusion that reinforces the main message. 
• Good speech writing embraces the power of engaging content, weaving in stories, examples, and relatable anecdotes to connect with the audience on both intellectual and emotional levels. 

Ultimately, it is the combination of these elements, along with the authenticity and delivery of the speaker , that transforms words on a page into a powerful and impactful spoken narrative.

What makes a good speech?

A great speech includes several key qualities, but three fundamental elements make a speech truly effective:

Clarity and purpose

Remembering the audience, cohesive structure.

While other important factors make a speech a home run, these three elements are essential for writing an effective speech.

The main elements of a good speech

The main elements of a speech typically include:

• Introduction: The introduction sets the stage for your speech and grabs the audience's attention. It should include a hook or attention-grabbing opening, introduce the topic, and provide an overview of what will be covered.
• Opening/captivating statement: This is a strong statement that immediately engages the audience and creates curiosity about the speech topics.
• Thesis statement/central idea: The thesis statement or central idea is a concise statement that summarizes the main point or argument of your speech. It serves as a roadmap for the audience to understand what your speech is about.
• Body: The body of the speech is where you elaborate on your main points or arguments. Each point is typically supported by evidence, examples, statistics, or anecdotes. The body should be organized logically and coherently, with smooth transitions between the main points.
• Supporting evidence: This includes facts, data, research findings, expert opinions, or personal stories that support and strengthen your main points. Well-chosen and credible evidence enhances the persuasive power of your speech.
• Transitions: Transitions are phrases or statements that connect different parts of your speech, guiding the audience from one idea to the next. Effective transitions signal the shifts in topics or ideas and help maintain a smooth flow throughout the speech.
• Counterarguments and rebuttals (if applicable): If your speech involves addressing opposing viewpoints or counterarguments, you should acknowledge and address them. Presenting counterarguments makes your speech more persuasive and demonstrates critical thinking.
• Conclusion: The conclusion is the final part of your speech and should bring your message to a satisfying close. Summarize your main points, restate your thesis statement, and leave the audience with a memorable closing thought or call to action.
• Closing statement: This is the final statement that leaves a lasting impression and reinforces the main message of your speech. It can be a call to action, a thought-provoking question, a powerful quote, or a memorable anecdote.
• Delivery and presentation: How you deliver your speech is also an essential element to consider. Pay attention to your tone, body language, eye contact , voice modulation, and timing. Practice and rehearse your speech, and try using the 7-38-55 rule to ensure confident and effective delivery.

While the order and emphasis of these elements may vary depending on the type of speech and audience, these elements provide a framework for organizing and delivering a successful speech.

How to structure a good speech

You know what message you want to transmit, who you’re delivering it to, and even how you want to say it. But you need to know how to start, develop, and close a speech before writing it. 

Think of a speech like an essay. It should have an introduction, conclusion, and body sections in between. This places ideas in a logical order that the audience can better understand and follow them. Learning how to make a speech with an outline gives your storytelling the scaffolding it needs to get its point across.

Here’s a general speech structure to guide your writing process:

• Explanation 1
• Explanation 2
• Explanation 3

How to write a compelling speech opener

Some research shows that engaged audiences pay attention for only 15 to 20 minutes at a time. Other estimates are even lower, citing that people stop listening intently in fewer than 10 minutes . If you make a good first impression at the beginning of your speech, you have a better chance of interesting your audience through the middle when attention spans fade. 

Implementing the INTRO model can help grab and keep your audience’s attention as soon as you start speaking. This acronym stands for interest, need, timing, roadmap, and objectives, and it represents the key points you should hit in an opening. 

Here’s what to include for each of these points: 

• Interest : Introduce yourself or your topic concisely and speak with confidence . Write a compelling opening statement using relevant data or an anecdote that the audience can relate to.
• Needs : The audience is listening to you because they have something to learn. If you’re pitching a new app idea to a panel of investors, those potential partners want to discover more about your product and what they can earn from it. Read the room and gently remind them of the purpose of your speech. 
• Timing : When appropriate, let your audience know how long you’ll speak. This lets listeners set expectations and keep tabs on their own attention span. If a weary audience member knows you’ll talk for 40 minutes, they can better manage their energy as that time goes on. 
• Routemap : Give a brief overview of the three main points you’ll cover in your speech. If an audience member’s attention starts to drop off and they miss a few sentences, they can more easily get their bearings if they know the general outline of the presentation.
• Objectives : Tell the audience what you hope to achieve, encouraging them to listen to the end for the payout. 

Writing the middle of a speech

The body of your speech is the most information-dense section. Facts, visual aids, PowerPoints — all this information meets an audience with a waning attention span. Sticking to the speech structure gives your message focus and keeps you from going off track, making everything you say as useful as possible.

Limit the middle of your speech to three points, and support them with no more than three explanations. Following this model organizes your thoughts and prevents you from offering more information than the audience can retain. 

Using this section of the speech to make your presentation interactive can add interest and engage your audience. Try including a video or demonstration to break the monotony. A quick poll or survey also keeps the audience on their toes. 

Wrapping the speech up

To you, restating your points at the end can feel repetitive and dull. You’ve practiced countless times and heard it all before. But repetition aids memory and learning , helping your audience retain what you’ve told them. Use your speech’s conclusion to summarize the main points with a few short sentences.

Try to end on a memorable note, like posing a motivational quote or a thoughtful question the audience can contemplate once they leave. In proposal or pitch-style speeches, consider landing on a call to action (CTA) that invites your audience to take the next step.

How to write a good speech

If public speaking gives you the jitters, you’re not alone. Roughly 80% of the population feels nervous before giving a speech, and another 10% percent experiences intense anxiety and sometimes even panic. 

The fear of failure can cause procrastination and can cause you to put off your speechwriting process until the last minute. Finding the right words takes time and preparation, and if you’re already feeling nervous, starting from a blank page might seem even harder.

But putting in the effort despite your stress is worth it. Presenting a speech you worked hard on fosters authenticity and connects you to the subject matter, which can help your audience understand your points better. Human connection is all about honesty and vulnerability, and if you want to connect to the people you’re speaking to, they should see that in you.

1. Identify your objectives and target audience

Before diving into the writing process, find healthy coping strategies to help you stop worrying . Then you can define your speech’s purpose, think about your target audience, and start identifying your objectives. Here are some questions to ask yourself and ground your thinking : 

• What purpose do I want my speech to achieve? 
• What would it mean to me if I achieved the speech’s purpose?
• What audience am I writing for? 
• What do I know about my audience? 
• What values do I want to transmit? 
• If the audience remembers one take-home message, what should it be? 
• What do I want my audience to feel, think, or do after I finish speaking? 
• What parts of my message could be confusing and require further explanation?

2. Know your audience

Understanding your audience is crucial for tailoring your speech effectively. Consider the demographics of your audience, their interests, and their expectations. For instance, if you're addressing a group of healthcare professionals, you'll want to use medical terminology and data that resonate with them. Conversely, if your audience is a group of young students, you'd adjust your content to be more relatable to their experiences and interests. 

3. Choose a clear message

Your message should be the central idea that you want your audience to take away from your speech. Let's say you're giving a speech on climate change. Your clear message might be something like, "Individual actions can make a significant impact on mitigating climate change." Throughout your speech, all your points and examples should support this central message, reinforcing it for your audience.

4. Structure your speech

Organizing your speech properly keeps your audience engaged and helps them follow your ideas. The introduction should grab your audience's attention and introduce the topic. For example, if you're discussing space exploration, you could start with a fascinating fact about a recent space mission. In the body, you'd present your main points logically, such as the history of space exploration, its scientific significance, and future prospects. Finally, in the conclusion, you'd summarize your key points and reiterate the importance of space exploration in advancing human knowledge.

5. Use engaging content for clarity

Engaging content includes stories, anecdotes, statistics, and examples that illustrate your main points. For instance, if you're giving a speech about the importance of reading, you might share a personal story about how a particular book changed your perspective. You could also include statistics on the benefits of reading, such as improved cognitive abilities and empathy.

6. Maintain clarity and simplicity

It's essential to communicate your ideas clearly. Avoid using overly technical jargon or complex language that might confuse your audience. For example, if you're discussing a medical breakthrough with a non-medical audience, explain complex terms in simple, understandable language.

7. Practice and rehearse

Practice is key to delivering a great speech. Rehearse multiple times to refine your delivery, timing, and tone. Consider using a mirror or recording yourself to observe your body language and gestures. For instance, if you're giving a motivational speech, practice your gestures and expressions to convey enthusiasm and confidence.

8. Consider nonverbal communication

Your body language, tone of voice, and gestures should align with your message . If you're delivering a speech on leadership, maintain strong eye contact to convey authority and connection with your audience. A steady pace and varied tone can also enhance your speech's impact.

9. Engage your audience

Engaging your audience keeps them interested and attentive. Encourage interaction by asking thought-provoking questions or sharing relatable anecdotes. If you're giving a speech on teamwork, ask the audience to recall a time when teamwork led to a successful outcome, fostering engagement and connection.

10. Prepare for Q&A

Anticipate potential questions or objections your audience might have and prepare concise, well-informed responses. If you're delivering a speech on a controversial topic, such as healthcare reform, be ready to address common concerns, like the impact on healthcare costs or access to services, during the Q&A session.

By following these steps and incorporating examples that align with your specific speech topic and purpose, you can craft and deliver a compelling and impactful speech that resonates with your audience.

Tools for writing a great speech

There are several helpful tools available for speechwriting, both technological and communication-related. Here are a few examples:

• Word processing software: Tools like Microsoft Word, Google Docs, or other word processors provide a user-friendly environment for writing and editing speeches. They offer features like spell-checking, grammar correction, formatting options, and easy revision tracking.
• Presentation software: Software such as Microsoft PowerPoint or Google Slides is useful when creating visual aids to accompany your speech. These tools allow you to create engaging slideshows with text, images, charts, and videos to enhance your presentation.
• Speechwriting Templates: Online platforms or software offer pre-designed templates specifically for speechwriting. These templates provide guidance on structuring your speech and may include prompts for different sections like introductions, main points, and conclusions.
• Rhetorical devices and figures of speech: Rhetorical tools such as metaphors, similes, alliteration, and parallelism can add impact and persuasion to your speech. Resources like books, websites, or academic papers detailing various rhetorical devices can help you incorporate them effectively.
• Speechwriting apps: Mobile apps designed specifically for speechwriting can be helpful in organizing your thoughts, creating outlines, and composing a speech. These apps often provide features like voice recording, note-taking, and virtual prompts to keep you on track.
• Grammar and style checkers: Online tools or plugins like Grammarly or Hemingway Editor help improve the clarity and readability of your speech by checking for grammar, spelling, and style errors. They provide suggestions for sentence structure, word choice, and overall tone.
• Thesaurus and dictionary: Online or offline resources such as thesauruses and dictionaries help expand your vocabulary and find alternative words or phrases to express your ideas more effectively. They can also clarify meanings or provide context for unfamiliar terms.
• Online speechwriting communities: Joining online forums or communities focused on speechwriting can be beneficial for getting feedback, sharing ideas, and learning from experienced speechwriters. It's an opportunity to connect with like-minded individuals and improve your public speaking skills through collaboration.

Remember, while these tools can assist in the speechwriting process, it's essential to use them thoughtfully and adapt them to your specific needs and style. The most important aspect of speechwriting remains the creativity, authenticity, and connection with your audience that you bring to your speech.

5 tips for writing a speech

Behind every great speech is an excellent idea and a speaker who refined it. But a successful speech is about more than the initial words on the page, and there are a few more things you can do to help it land.

Here are five more tips for writing and practicing your speech:

1. Structure first, write second

If you start the writing process before organizing your thoughts, you may have to re-order, cut, and scrap the sentences you worked hard on. Save yourself some time by using a speech structure, like the one above, to order your talking points first. This can also help you identify unclear points or moments that disrupt your flow.

2. Do your homework

Data strengthens your argument with a scientific edge. Research your topic with an eye for attention-grabbing statistics, or look for findings you can use to support each point. If you’re pitching a product or service, pull information from company metrics that demonstrate past or potential successes. 

Audience members will likely have questions, so learn all talking points inside and out. If you tell investors that your product will provide 12% returns, for example, come prepared with projections that support that statement.

3. Sound like yourself

Memorable speakers have distinct voices. Think of Martin Luther King Jr’s urgent, inspiring timbre or Oprah’s empathetic, personal tone . Establish your voice — one that aligns with your personality and values — and stick with it. If you’re a motivational speaker, keep your tone upbeat to inspire your audience . If you’re the CEO of a startup, try sounding assured but approachable. 

4. Practice

As you practice a speech, you become more confident , gain a better handle on the material, and learn the outline so well that unexpected questions are less likely to trip you up. Practice in front of a colleague or friend for honest feedback about what you could change, and speak in front of the mirror to tweak your nonverbal communication and body language .

5. Remember to breathe

When you’re stressed, you breathe more rapidly . It can be challenging to talk normally when you can’t regulate your breath. Before your presentation, try some mindful breathing exercises so that when the day comes, you already have strategies that will calm you down and remain present . This can also help you control your voice and avoid speaking too quickly.

How to ghostwrite a great speech for someone else

Ghostwriting a speech requires a unique set of skills, as you're essentially writing a piece that will be delivered by someone else. Here are some tips on how to effectively ghostwrite a speech:

• Understand the speaker's voice and style : Begin by thoroughly understanding the speaker's personality, speaking style, and preferences. This includes their tone, humor, and any personal anecdotes they may want to include.
• Interview the speaker : Have a detailed conversation with the speaker to gather information about their speech's purpose, target audience, key messages, and any specific points they want to emphasize. Ask for personal stories or examples they may want to include.
• Research thoroughly : Research the topic to ensure you have a strong foundation of knowledge. This helps you craft a well-informed and credible speech.
• Create an outline : Develop a clear outline that includes the introduction, main points, supporting evidence, and a conclusion. Share this outline with the speaker for their input and approval.
• Write in the speaker's voice : While crafting the speech, maintain the speaker's voice and style. Use language and phrasing that feel natural to them. If they have a particular way of expressing ideas, incorporate that into the speech.
• Craft a captivating opening : Begin the speech with a compelling opening that grabs the audience's attention. This could be a relevant quote, an interesting fact, a personal anecdote, or a thought-provoking question.
• Organize content logically : Ensure the speech flows logically, with each point building on the previous one. Use transitions to guide the audience from one idea to the next smoothly.
• Incorporate engaging stories and examples : Include anecdotes, stories, and real-life examples that illustrate key points and make the speech relatable and memorable.
• Edit and revise : Edit the speech carefully for clarity, grammar, and coherence. Ensure the speech is the right length and aligns with the speaker's time constraints.
• Seek feedback : Share drafts of the speech with the speaker for their feedback and revisions. They may have specific changes or additions they'd like to make.
• Practice delivery : If possible, work with the speaker on their delivery. Practice the speech together, allowing the speaker to become familiar with the content and your writing style.
• Maintain confidentiality : As a ghostwriter, it's essential to respect the confidentiality and anonymity of the work. Do not disclose that you wrote the speech unless you have the speaker's permission to do so.
• Be flexible : Be open to making changes and revisions as per the speaker's preferences. Your goal is to make them look good and effectively convey their message.
• Meet deadlines : Stick to agreed-upon deadlines for drafts and revisions. Punctuality and reliability are essential in ghostwriting.
• Provide support : Support the speaker during their preparation and rehearsal process. This can include helping with cue cards, speech notes, or any other materials they need.

Remember that successful ghostwriting is about capturing the essence of the speaker while delivering a well-structured and engaging speech. Collaboration, communication, and adaptability are key to achieving this.

Give your best speech yet

Learn how to make a speech that’ll hold an audience’s attention by structuring your thoughts and practicing frequently. Put the effort into writing and preparing your content, and aim to improve your breathing, eye contact , and body language as you practice. The more you work on your speech, the more confident you’ll become.

The energy you invest in writing an effective speech will help your audience remember and connect to every concept. Remember: some life-changing philosophies have come from good speeches, so give your words a chance to resonate with others. You might even change their thinking.

Elevate your communication skills

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Elizabeth Perry is a Coach Community Manager at BetterUp. She uses strategic engagement strategies to cultivate a learning community across a global network of Coaches through in-person and virtual experiences, technology-enabled platforms, and strategic coaching industry partnerships. With over 3 years of coaching experience and a certification in transformative leadership and life coaching from Sofia University, Elizabeth leverages transpersonal psychology expertise to help coaches and clients gain awareness of their behavioral and thought patterns, discover their purpose and passions, and elevate their potential. She is a lifelong student of psychology, personal growth, and human potential as well as an ICF-certified ACC transpersonal life and leadership Coach.

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• Freedom Of Speech

Freedom of Speech - Article 19(1)(a)

The Constitution of India guarantees freedom of speech and expression to all citizens. It is enshrined in Article 19(1)(a). This topic is frequently seen in the news and is hence, very important for the IAS Exam . In this article, you can read all about Article 19(1)(a) and its provisions.

Article 19(1)(a)

According to Article 19(1)(a): All citizens shall have the right to freedom of speech and expression.

• This implies that all citizens have the right to express their views and opinions freely.
• This includes not only words of mouth, but also a speech by way of writings, pictures, movies, banners, etc.
• The right to speech also includes the right not to speak.
• The Supreme Court of India has held that participation in sports is an expression of one’s self and hence, is a form of freedom of speech.
• In 2004, the SC held that hoisting the national flag is also a form of this freedom.
• Freedom of the press is an inferred freedom under this Article.
• This right also includes the right to access information because this right is meaningless when others are prevented from knowing/listening. It is according to this interpretation that the Right to Information (RTI) is a fundamental right.
• The SC has also ruled that freedom of speech is an inalienable right adjunct to the right to life (Article 21). These two rights are not separate but related.
• Restrictions on the freedom of speech of any citizen may be placed as much by an action of the state as by its inaction. This means that the failure of the State to guarantee this freedom to all classes of citizens will be a violation of their fundamental rights.
• The right to freedom of speech and expression also includes the right to communicate, print and advertise information.
• This right also includes commercial as well as artistic speech and expression.

You can read all about Fundamental Rights at the linked article.

Importance of Freedom of Speech and Expression

A basic element of a functional democracy is to allow all citizens to participate in the political and social processes of the country. There is ample freedom of speech, thought and expression in all forms (verbal, written, broadcast, etc.) in a healthy democracy.

Freedom of speech is guaranteed not only by the Indian Constitution but also by international statutes such as the Universal Declaration of Human Rights (declared on 10th December 1948) , the International Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms, etc.

• This is important because democracy works well only if the people have the right to express their opinions about the government and criticise it if needed.
• The voice of the people must be heard and their grievances are satisfied.
• Not just in the political sphere, even in other spheres like social, cultural and economic, the people must have their voices heard in a true democracy.
• In the absence of the above freedoms, democracy is threatened. The government will become all-too-powerful and start serving the interests of a few rather than the general public. 
• Heavy clampdown on the right to free speech and free press will create a fear-factor under which people would endure tyranny silently. In such a scenario, people would feel stifled and would rather suffer than express their opinions.
• Freedom of the press is also an important factor in the freedom of speech and expression.
• The second Chief Justice of India, M Patanjali Sastri has observed, “Freedom of Speech and of the Press lay at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of Government, is possible.”
• In the Indian context, the significance of this freedom can be understood from the fact that the Preamble itself ensures to all citizens the liberty of thought, expression, belief, faith and worship.
• Liberal democracies, especially in the West, have a very wide interpretation of the freedom of speech and expression. There is plenty of leeways for people to express dissent freely.
• However, most countries (including liberal democracies) have some sort of censorship in place, most of which are related to defamation, hate speech, etc.
• The idea behind censorship is generally to prevent law and order issues in the country.

To know more in detail about the Constitution of India , visit the linked article

The Need to Protect Freedom of Speech

There are four justifications for freedom of speech. They are:

• For the discovery of truth by open discussion.
• It is an aspect of self-fulfilment and development.
• To express beliefs and political attitudes.
• To actively participate in a democracy.

Restriction on Freedom of Speech

Freedom of speech is not absolute. Article 19(2) imposes restrictions on the right to freedom of speech and expression. The reasons for such restrictions are in the interests of:

• Sovereignty and integrity of the country
• Friendly relations with foreign countries
• Public order
• Decency or morality
• Hate speech
• Contempt of court

The Constitution provides people with the freedom of expression without fear of reprisal, but it must be used with caution, and responsibly.

Freedom of Speech on Social Media

The High Court of Tripura has held that posting on social media was virtually the same as a fundamental right applicable to all citizens, including government employees. It also asserted that government servants are entitled to hold and express their political beliefs, subject to the restrictions laid under the Tripura Civil Services (Conduct) Rules, 1988.

In another significant judgment, the HC of Tripura ordered the police to refrain from prosecuting the activist who was arrested over a social media post where he criticized an online campaign in support of the Citizenship Amendment Act (CAA), 2019 and warned people against it. The High Court held that these orders are in line with the very essence of the Indian Constitution.

Hate Speech

The Supreme Court of India had asked the Law Commission to make recommendations to the Parliament to empower the Election Commission to restrict the problem of “hate speeches” irrespective of, whenever made. But the Law Commission recommended that several factors need to be taken into account before restricting a speech, such as the context of the speech, the status of the maker of the speech, the status of the victim and the potential of the speech to create discriminatory and disruptive circumstances.

Freedom of Speech in Art

In relation to art, the court has held that “the art must be so preponderating as to throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.” 

There are restrictions in what can be shown in cinemas and this is governed by the Cinematograph Act, 1952. You can read more about this and the Censor Board in India here.

Safeguards for Freedom of Speech and Expression under Article 19(2)

The Constitution of India guarantees freedom of speech and expression to all its citizens, however, these freedom are not absolute because Article 19 (2) of the constitution provides a safeguard to this freedom under which reasonable restrictions can be imposed on the exercise of this right for certain purposes. Safeguards outlined are discussed below-

Article 19(2) of the Indian constitution allows the state to make laws that restrict freedom of speech and expression so long as they impose any restriction on the –

• The state’s Security such as rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety.
• Interest id Integrity and Sovereignty of India – this was added by the 16 th  constitutional amendment act under the tense situation prevailing in different parts of the country. Its objective is to give appropriate powers to impose restrictions against those individuals or organizations who want to make secession from India or disintegration of India as political purposes for fighting elections.
• Contempt of court: Restriction can be imposed if the speech and expression exceed the reasonable and fair limit and amounts to contempt of court.
• Friendly relations with foreign states: It was added by the First Amendment Act, 1951 to prohibit unrestrained malicious propaganda against a foreign-friendly state. This is because it may jeopardize the maintenance of good relations between India and that state.
• Defamation or incitement to an offense: A statement, which injures the reputation of a man, amounts to defamation. Defamation consists in exposing a man to hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India and subject to certain exceptions.
• Decency or Morality – Article 19(2) inserts decency or morality as grounds for restricting the freedom of speech and expression. Sections 292 to 294 of the Indian Penal Code gives instances of restrictions on this freedom in the interest of decency or morality. The sections do not permit the sale or distribution or exhibition of obscene words, etc. in public places. However, the words decency or morality is very subjective and there is no strict definition for them. Also, it varies with time and place.

Need of these Safeguards of Freedom of Speech & Expression

• In order to safeguard state security and its sovereignty as a speech can be used against the state as a tool to spread hatred.
• To strike a social balance. Freedom is more purposeful if it is coupled with responsibility.
• Certain prior restrictions are necessary to meet the collective interest of society.
• To protect others’ rights. Any speech can harm a large group of people and their rights, hence reasonable restrictions must be imposed so that others right is not hindered by the acts od one man.

Right to Information

As mentioned before, the right to information is a fundamental right under Article 19(1). The right to receive information has been inferred from the right to free speech. However, the RTI has not been extended to the Official Secrets Act. For more on the RTI, click here .

Freedom of Speech – Indian Polity:- Download PDF Here

UPSC Questions related to Freedom of Speech

Yes, freedom of speech is a fundamental right guaranteed under Article 19(1)(a).

Article 19 of the Constitution guaranteed the right to freedom. Read more here .

The 7 fundamental rights are:

• Right to equality
• Right to freedom
• Right against exploitation
• Right to freedom of religion
• Cultural and educational rights
• Right to constitutional remedies

On what grounds can the State limit Freedom of Speech?

The state can limit Freedom of Speech on the following grounds

• Friendly Relations with Foreign Countries
• National Security
• Integrity and Unity of the State

You can know more about the topics asked in the exam by visiting the UPSC Syllabus page. Also, refer to the links given below for more articles. 

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Rice Speechwriting

Beginners guide to what is a speech writing, what is a speech writing: a beginner’s guide, what is the purpose of speech writing.

The purpose of speech writing is to craft a compelling and effective speech that conveys a specific message or idea to an audience. It involves writing a script that is well-structured, engaging, and tailored to the speaker’s delivery style and the audience’s needs.

Have you ever been called upon to deliver a speech and didn’t know where to start? Or maybe you’re looking to improve your public speaking skills and wondering how speech writing can help. Whatever the case may be, this beginner’s guide on speech writing is just what you need. In this blog, we will cover everything from understanding the art of speech writing to key elements of an effective speech. We will also discuss techniques for engaging speech writing, the role of audience analysis in speech writing, time and length considerations, and how to practice and rehearse your speech. By the end of this article, you will have a clear understanding of how speech writing can improve your public speaking skills and make you feel confident when delivering your next big presentation.

Understanding the Art of Speech Writing

Crafting a speech involves melding spoken and written language. Tailoring the speech to the audience and occasion is crucial, as is captivating the audience and evoking emotion. Effective speeches utilize rhetorical devices, anecdotes, and a conversational tone. Structuring the speech with a compelling opener, clear points, and a strong conclusion is imperative. Additionally, employing persuasive language and maintaining simplicity are essential elements. The University of North Carolina’s writing center greatly emphasizes the importance of using these techniques.

The Importance of Speech Writing

Crafting a persuasive and impactful speech is essential for reaching your audience effectively. A well-crafted speech incorporates a central idea, main point, and a thesis statement to engage the audience. Whether it’s for a large audience or different ways of public speaking, good speech writing ensures that your message resonates with the audience. Incorporating engaging visual aids, an impactful introduction, and a strong start are key features of a compelling speech. Embracing these elements sets the stage for a successful speech delivery.

The Role of a Speech Writer

A speechwriter holds the responsibility of composing speeches for various occasions and specific points, employing a speechwriting process that includes audience analysis for both the United States and New York audiences. This written text is essential for delivering impactful and persuasive messages, often serving as a good start to a great speech. Utilizing NLP terms like ‘short sentences’ and ‘persuasion’ enhances the content’s quality and relevance.

Key Elements of Effective Speech Writing

Balancing shorter sentences with longer ones is essential for crafting an engaging speech. Including subordinate clauses and personal stories caters to the target audience and adds persuasion. The speechwriting process, including the thesis statement and a compelling introduction, ensures the content captures the audience’s attention. Effective speech writing involves research and the generation of new ideas. Toastmasters International and the Writing Center at the University of North Carolina at Chapel Hill provide valuable resources for honing English and verbal skills.

Clarity and Purpose of the Speech

Achieving clarity, authenticity, and empathy defines a good speech. Whether to persuade, inform, or entertain, the purpose of a speech is crucial. It involves crafting persuasive content with rich vocabulary and clear repetition. Successful speechwriting demands a thorough understanding of the audience and a compelling introduction. Balancing short and long sentences is essential for holding the audience’s attention. This process is a fusion of linguistics, psychology, and rhetoric, making it an art form with a powerful impact.

Identifying Target Audience

Tailoring the speechwriting process hinges on identifying the target audience. Their attention is integral to the persuasive content, requiring adaptation of the speechwriting process. A speechwriter conducts audience analysis to capture the audience’s attention, employing new york audience analysis methods. Ensuring a good introduction and adapting the writing process for the target audience are key features of a great speech. Effective speechwriters prioritize the audience’s attention to craft compelling and persuasive speeches.

Structuring Your Speech

The speechwriting process relies on a well-defined structure, crucial to both the speech’s content and the writing process. It encompasses a compelling introduction, an informative body, and a strong conclusion. This process serves as a foundation for effective speeches, guiding the speaker through a series of reasons and a persuasive speechwriting definition. Furthermore, the structure, coupled with audience analysis, is integral to delivering a great speech that resonates with the intended listeners.

The Process of Writing a Speech

Crafting a speech involves composing the opening line, developing key points, and ensuring a strong start. Effective speech writing follows a structured approach, incorporating rhetorical questions and a compelling introduction. A speechwriter’s process includes formulating a thesis statement, leveraging rhetorical questions, and establishing a good start. This process entails careful consideration of the audience, persuasive language, and engaging content. The University of North Carolina’s writing center emphasizes the significance of persuasion, clarity, and concise sentences in speechwriting.

Starting with a Compelling Opener

A speechwriting process commences with a captivating opening line and a strong introduction, incorporating the right words and rhetorical questions. The opening line serves as both an introduction and a persuasive speech, laying the foundation for a great speechwriting definition. Additionally, the structure of the speechwriting process, along with audience analysis, plays a crucial role in crafting an effective opening. Considering these elements is imperative when aiming to start a speech with a compelling opener.

Developing the Body of the Speech

Crafting the body of a speech involves conveying the main points with persuasion and precision. It’s essential to outline the speechwriting process, ensuring a clear and impactful message. The body serves as a structured series of reasons, guiding the audience through the content. Through the use of short sentences and clear language, the body of the speech engages the audience, maintaining their attention. Crafting the body involves the art of persuasion, using the power of words to deliver a compelling message.

Crafting a Strong Conclusion

Crafting a strong conclusion involves reflecting the main points of the speech and summarizing key ideas, leaving the audience with a memorable statement. It’s the final chance to leave a lasting impression and challenge the audience to take action or consider new perspectives. A good conclusion can make the speech memorable and impactful, using persuasion and English language effectively to drive the desired response from the audience. Toastmasters International emphasizes the importance of a strong conclusion in speechwriting for maximum impact.

Techniques for Engaging Speech Writing

Engage the audience’s attention using rhetorical questions. Create a connection through anecdotes and personal stories. Emphasize key points with rhetorical devices to capture the audience’s attention. Maintain interest by varying sentence structure and length. Use visual aids to complement the spoken word and enhance understanding. Incorporate NLP terms such as “short sentences,” “writing center,” and “persuasion” to create engaging and informative speech writing.

Keeping the Content Engaging

Captivating the audience’s attention requires a conversational tone, alliteration, and repetition for effect. A strong introduction sets the tone, while emotional appeals evoke responses. Resonating with the target audience ensures engagement. Utilize short sentences, incorporate persuasion, and vary sentence structure to maintain interest. Infuse the speech with NLP terms like “writing center”, “University of North Carolina”, and “Toastmasters International” to enhance its appeal. Engaging content captivates the audience and compels them to listen attentively.

Maintaining Simplicity and Clarity

To ensure clarity and impact, express ideas in short sentences. Use a series of reasons and specific points to effectively convey the main idea. Enhance the speech with the right words for clarity and comprehension. Simplify complex concepts by incorporating anecdotes and personal stories. Subordinate clauses can provide structure and clarity in the speechwriting process.

The Power of Nonverbal Communication

Nonverbal cues, such as body language and gestures, can add emphasis to your spoken words, enhancing the overall impact of your speech. By incorporating visual aids and handouts, you can further augment the audience’s understanding and retention of key points. Utilizing a conversational tone and appropriate body language is crucial for establishing a genuine connection with your audience. Visual aids and gestures not only aid comprehension but also help in creating a lasting impression, captivat**ing** the audience with compelling visual elements.

The Role of Audience Analysis in Speech Writing

Tailoring a speech to the audience’s needs is paramount. Demographics like age, gender, and cultural background must be considered. Understanding the audience’s interests and affiliation is crucial for delivering a resonating speech. Content should be tailored to specific audience points of interest, engaging and speaking to their concerns.

Understanding Audience Demographics

Understanding the varied demographics of the audience, including age and cultural diversity, is crucial. Adapting the speech content to resonate with a diverse audience involves tailoring it to the different ways audience members process and interpret information. This adaptation ensures that the speech can effectively engage with the audience, no matter their background or age. Recognizing the importance of understanding audience demographics is key for effective audience analysis. By considering these factors, the speech can be tailored to meet the needs and preferences of the audience, resulting in a more impactful delivery.

Considering the Audience Size and Affiliation

When tailoring a speech, consider the audience size and affiliation to influence the tone and content effectively. Adapt the speech content and delivery to resonate with a large audience and different occasions, addressing the specific points of the target audience’s affiliation. By delivering a speech tailored to the audience’s size and specific points of affiliation, you can ensure that your message is received and understood by all.

Time and Length Considerations in Speech Writing

Choosing the appropriate time for your speech and determining its ideal length are crucial factors influenced by the purpose and audience demographics. Tailoring the speech’s content and structure for different occasions ensures relevance and impact. Adapting the speech to specific points and the audience’s demographics is key to its effectiveness. Understanding these time and length considerations allows for effective persuasion and engagement, catering to the audience’s diverse processing styles.

Choosing the Right Time for Your Speech

Selecting the optimal start and opening line is crucial for capturing the audience’s attention right from the beginning. It’s essential to consider the timing and the audience’s focus to deliver a compelling and persuasive speech. The right choice of opening line and attention to the audience set the tone for the speech, influencing the emotional response. A good introduction and opening line not only captivate the audience but also establish the desired tone for the speech.

Determining the Ideal Length of Your Speech

When deciding the ideal length of your speech, it’s crucial to tailor it to your specific points and purpose. Consider the attention span of your audience and the nature of the event. Engage in audience analysis to understand the right words and structure for your speech. Ensure that the length is appropriate for the occasion and target audience. By assessing these factors, you can structure your speech effectively and deliver it with confidence and persuasion.

How to Practice and Rehearse Your Speech

Incorporating rhetorical questions and anecdotes can deeply engage your audience, evoking an emotional response that resonates. Utilize visual aids, alliteration, and repetition to enhance your speech and captivate the audience’s attention. Effective speechwriting techniques are essential for crafting a compelling introduction and persuasive main points. By practicing a conversational tone and prioritizing clarity, you establish authenticity and empathy with your audience. Develop a structured series of reasons and a solid thesis statement to ensure your speech truly resonates.

Techniques for Effective Speech Rehearsal

When practicing your speech, aim for clarity and emphasis by using purposeful repetition and shorter sentences. Connect with your audience by infusing personal stories and quotations to make your speech more relatable. Maximize the impact of your written speech when spoken by practicing subordinate clauses and shorter sentences. Focus on clarity and authenticity, rehearsing your content with a good introduction and a persuasive central idea. Employ rhetorical devices and a conversational tone, ensuring the right vocabulary and grammar.

How Can Speech Writing Improve Your Public Speaking Skills?

Enhancing your public speaking skills is possible through speech writing. By emphasizing key points and a clear thesis, you can capture the audience’s attention. Developing a strong start and central idea helps deliver effective speeches. Utilize speechwriting techniques and rhetorical devices to structure engaging speeches that connect with the audience. Focus on authenticity, empathy, and a conversational tone to improve your public speaking skills.

In conclusion, speech writing is an art that requires careful consideration of various elements such as clarity, audience analysis, and engagement. By understanding the importance of speech writing and the role of a speech writer, you can craft effective speeches that leave a lasting impact on your audience. Remember to start with a compelling opener, develop a strong body, and end with a memorable conclusion. Engaging techniques, simplicity, and nonverbal communication are key to keeping your audience captivated. Additionally, analyzing your audience demographics and considering time and length considerations are vital for a successful speech. Lastly, practicing and rehearsing your speech will help improve your public speaking skills and ensure a confident delivery.

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Sentence Sense Newsletter

How not to counter the radical right

Professor of International Politics, L’Université d’Ottawa/University of Ottawa

Disclosure statement

Rita Abrahamsen receives funding from Social Sciences and Humanities Research Council of Canada for the research project World of the Right.

Michael Williams receives funding from the Social Sciences and Humanities Research Council of Canada.

University of Ottawa provides funding as a founding partner of The Conversation CA-FR.

University of Ottawa provides funding as a member of The Conversation CA.

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National Conservatism conferences, one of the main meeting grounds for the global radical right, rarely attract much attention. If not for the decision of a local mayor, the same neglect would have befallen this year’s event in Brussels .

But the mayor’s decision to shut down the conference on the grounds of “public safety” earned NatCon, as it’s known colloquially, headlines around the world.

Although the decision was quickly overturned and the conference continued the next day, the damage was done. Cancelling a meeting of radical right-wing activists who rail against “cancel culture” qualifies as a devastating self-inflicted wound for those seeking to counter the spread and influence of radical right ideas.

Radical right meeting ground

NatCon is part of a broader effort to build a transnationally connected movement against liberal globalization.

This year’s featured speakers included familiar right-wing figures like Brexit firebrand Nigel Farage, British politician Suella Braverman, controversial French author and presidential candidate Éric Zemmour and Hungarian Prime Minister Victor Orbán.

The meeting was barely underway when the police arrived to shut it down.

While the official reason was “public security,” Emil Kir, the mayor of the Brussels district where the conference was being held, added a list of other justifications . They included NatCon’s “ethically conservative” vision, its “hostility to the legalisation of abortion, same-sex unions, etc.,” its focus on the defence of “national sovereignty” and its “Eurosceptic” attitude.

This, combined with his observation that some of the speakers “are reputed to be traditionalists,” led him to declare that “the far right is not welcome.”

Far from silencing the radical right, we believe setting the police on a meeting of former and present politicians — however objectionable and offensive their opinions are to many people — will only make them more vocal and more convinced about the righteousness of their mission.

Their supporters, too, are likely to find the police action a step too far, which may in turn have consequences at the ballot box. In this sense, the Brussels mayor may have handed the radical right a gift.

Free speech as a rallying cry

The radical right has made free speech one of its battle cries, and the effort to “cancel” the conference confirmed its accusations that liberal free speech is limited only to those who support liberal positions.

In the words of Frank Furedi , one of the conference’s organizers:

“The city of Brussels is occupied by forces hostile to free speech and democracy. Tragically and shamefully, it has become apparent that the political establishment in Brussels is actively collaborating with left-wing extremists to prevent the free expression of political ideas and opinions in the city.”

The fact that the closure happened in Brussels — the European Union’s capital and a bane to the radical right — is an added bonus. The radical right regards the EU as a prime agent of the suppression not only of free speech, but also of national identities and sovereignty.

For powerful politicians like Orbán, who addressed NatCon on the second day of the conference, the EU epitomizes the abusive power of a new global elite dedicated to exporting liberal values and in the process destroying traditional cultures and differences.

“I guess they couldn’t take free speech any longer,” Orbán said on X, adding the hashtags “#noMigration, #noGender, #noWar.”

Radical right goes global

Some might agree with the Brussels mayor that censorship of such unsavoury viewpoints is legitimate and necessary.

The analogy is frequently made to 1930s Germany , suggesting that if the Weimar government had suppressed the Nazi movement, the Holocaust might have been avoided. Even if historically correct, which is debatable, it is highly doubtful that such a strategy would succeed now.

Today’s radical right is global . Its ideas cannot be suppressed by cancelling meetings. Those ideas circulate through digital media and have supporters around the world. They’re no longer exclusive property of fringe movements; they’re now shared by powerful parties and governments.

In fact, many of the NatCon attendees moved on directly to the much bigger stage of CPAC Hungary , the largest international gathering of radical conservatives. Again, prominent speakers like Orbán, Geert Wilders of the Dutch Party for Freedom , Santiago Absacal of the Spanish Vox party and Tom Van Grieken of the Flemish Vlaams Belang were set to express similar opinions to those heard at NatCon Brussels.

Silencing doesn’t work

For those opposed to the ideas circulating at NatCon and CPAC, the debacle in Brussels contains one lesson: trying to silence the radical right isn’t the way forward. Not only is it likely to backfire, it will probably galvanize the radical right.

As one of our contacts at NatCon confessed, many are glad that the police intervened, not only because it exposed the thinking of those in power, but also because it gave conference attendees a sense of mission and encouragement to keep fighting.

The challenge for those of us who oppose these ideas is to demonstrate the same courage. Rather than censoring, we must dare to counter the radical right through rational arguments and political convictions.

• European Union (EU)
• Nationalism
• Nigel Farage
• Nazi Germany
• Viktor Orbán
• Right-wing populism
• radical right
• Suella Braverman

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Opinion: Banning TikTok has nothing to do with the constitutional right to free speech

A fter President Biden signed a law that requires ByteDance, TikTok’s Chinese parent company, to divest from the app or face a ban in the United States, TikTok CEO Shou Chew vowed to fight in court. A spokesperson for the social media company said that the law is unconstitutional because it “would trample the free speech rights of 170 million Americans.”

This statement betrays a misunderstanding of rights in general and constitutional rights, such as the freedom of speech, in particular. For the most part, the rights enumerated in the Constitution are negative rights. Holders of negative rights are entitled to non-interference; if I have a negative right to something, others have an obligation to not take from me what I have a legitimate claim to.

For instance, the right to freedom of movement, as stated in Article 13 of the  Universal Declaration of Human Rights , is an example of a negative right. The right to freedom of movement means that I am entitled to move freely from one country to another. But no one is obligated to assist me with my travel arrangements, nor am I owed travel accommodations of any sort.

On the other hand, holders of positive rights are entitled to provision of some good or service. That is, if I have a positive right to something, others have an obligation to give me what I have a legitimate claim to. For instance, the right to a nationality, as stated in Article 15 of the Universal Declaration of Human Rights, is an example of a positive right. The right to a nationality means that I am entitled to have a nationality. The country where I was born is obligated to provide it to me. I am owed a nationality.

Free speech, which is guaranteed by the First Amendment of the Constitution, is an example of a negative right. I am entitled to express myself freely, but no one is obligated to help me express myself. In particular, no one is obligated to give me a platform to express myself. I am not owed a column in The Hill, or any other news outlet for that matter.

That is why the argument that the law requiring ByteDance to divest from TikTok or face a ban violates “ the free speech rights ” of Americans is misguided. Even if TikTok ends up being banned in the U.S. because ByteDance refuses to divest from the social media app, it would not amount to a violation of the freedom of speech that is guaranteed to Americans by the Constitution. Freedom of speech is a negative right. The right to free speech does not mean that the federal government owes every American a platform from which to broadcast their speech. It simply means that the federal government should not interfere with Americans’ freedom to express themselves.

Having one less digital platform from which to express themselves would not suppress the free speech of Americans, as the social media company alleges . The Constitution gives Americans the freedom to speak freely without interference. It does not guarantee speaking engagements for Americans. As another social media company once said , freedom of speech is not freedom of reach.

Moti Mizrahi is a professor of philosophy at the Florida Institute of Technology in Melbourne, Fla.

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