First Amendment Argument Essay

First Amendment Argument Essay-21
Under this view, which echoed the British law as expounded by Sir William Blackstone, criminal punishment after publication was constitutional.

Under this view, which echoed the British law as expounded by Sir William Blackstone, criminal punishment after publication was constitutional.

But broad statements such as this may tell us less than we would like to know about what "the freedom of the press" meant to the Founders as a rule of law, when the freedom would yield to competing concerns, or whether the freedom prohibited only prior restraints or also subsequent punishments.

There were very few reported Founding-era court cases interpreting the federal and state Freedom of Speech and of the Press Clause, and very few Founding-era political controversies that would have excited some detailed discussion of what the clauses meant.

Justices Clarence Thomas and Antonin Scalia, the Court's most devoted originalists, however, did focus on the original meaning discussion but reached different results.

Both Justices recognized that there was "no record of discussions of anonymous political expression in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions." They both recognized that much political speech in the time of the Framers (such as The Federalist itself) was anonymous.

Indeed, much political speech justifying resistance to Parliament before the Revolution was also anonymous.

To Justice Thomas, the experience of the Founders in their own use of anonymous speech was dispositive of what they would have regarded as a vital part of the freedom of speech, particularly where political speech was at issue.

Several publishers were in fact convicted under the law, often under rather biased applications of the falsity requirement.

Then Federalist Congressman John Marshall, although doubtful that the Sedition Act was wise, nonetheless argued that the free press guarantee meant only "liberty to publish, free from previous restraint"—free of requirements that printers be licensed, or that their material be approved before publication.

Surprisingly, there is little definitively known about the subject.

The debates in the First Congress, which proposed the Bill of Rights, are brief and unilluminating.

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