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Hugo Black’s Misreading of the First Amendment

Associate Justice Hugo Black (1886-1971) styled himself a First Amendment absolutist. While predating modern debates over textualism and originalism, Black articulated his position on grounds consistent both with textual originalism and original intent. In a dissenting opinion in 1960, for example, Black wrote judges should “enforce the First Amendment to the full extent of its express and unequivocal terms.” So, too, original intent. He explained in an article in NYU Law Review, “[n]othing that I have read in the Congressional debates on the Bill of Rights indicates that . . . the First Amendment contained any qualifications.”

Black’s statement of his reading of First Amendment speech and press guarantees in a dissent in Mishkin v. New York is instructive: “I think the Founders of our Nation in adopting the First Amendment meant precisely that the Federal Government should pass ‘no law’ regulating speech and press . . . .”

Black famously opposed the Court’s application of balancing tests—such as strict scrutiny, or the clear-and-present-danger test—to determine whether the government could suppress speech.

Black’s position that a straight-forward reading—an honest reading—of the First Amendment facially requires an absolute reading of the protections is common now, if not conventional wisdom. In a passing comment in a book published last year (dedicated to a different topic in constitutional thought) a political scientist echoed Black’s belief as matter-of-factly obvious:

[T]he First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” yet courts have approved restrictions in the name of libel, obscenity, and other restraints on speech and publications. These restraints . . . are not provided for in the Constitution.

The thing is, Black’s ostensible textualism does not read the First Amendment correctly. And this actually is easy to show.

Let’s place the actual text of the First Amendment parallel to Black’s rendition of the First Amendment in his Mishkin dissent.

The First Amendment itself states: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”

Now Black’s construction from Mishkin, which I’ve altered slightly to bring the parallel into greater focus: Congress shall make no law . . . regulating speech, or the press.

I’m fine with treating “regulating” as a synonym of “abridging.” That’s not the critical change. And, indeed, the way Black renders the First Amendment does indeed express its requirements as an absolute. The First Amendment would be absolute if it stated “Congress shall make no law . . . abridging speech or press.”

But the First Amendment does not state Congress shall make no law abridging speech or press. It states Congress shall make no law abridging the freedom of speech, or of the press.

Black’s (mis)reading of the First Amendment violates a fundamental principle of legal interpretation: Every word of a legal text must be given effect, if possible. That is, an interpretation of a legal text that gives no effect to one or more words in the text must be rejected, unless it is impossible to read the text otherwise.

Black’s reading of the First Amendment gives no effect to the phrase, “the freedom of.” Indeed, he drops the phrase entirely from the rendition he provides in his Mishkin dissent. The words have no meaning in his reading of the Amendment.

The words, however, are not superfluous; it is straightforward to give effect to the phrase Black ignores. Doing so reads the First Amendment consistently with at least one major line of Supreme Court interpretation.

The imperative in the First Amendment that Congress shall make no law abridging the freedom of speech means there is a domain of speech that cannot be regulated. This category, however, is not identical with all speech. Rather, the First Amendment textually reflects the then existing legal partition of speech into a category of speech that is free and into a complementary category of speech that is not free.

The First Amendment forbids Congress from narrowing the set of speech that came within the then existing domain of “freedom of speech.” Stating that, however, in no wise implies that speech that fell within the then existing complementary set of legally proscribable speech—presumably defined at the time by common law—could not be abridged.

What is speech included in this complementary set of abridgeable speech? The Supreme Court explained in the 1942 case of Chaplinksy v. New Hampshire (an opinion Black joined):

There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.

One need not think the Court entirely correct regarding the list of types of unprotected speech to recognize the correctness of its methodology. The question is what fell within the domain of proscribable speech at the time the First Amendment was drafted. Indeed, going beyond Chaplinsky’s categorical approach, it’s possible a discerning textualist might even be able to deduce a balancing test to represent the underlying common law partition of speech at the time of the drafting and ratification of the First Amendment.

Irrespective, Justice Black’s “absolutist” reading of the First Amendment, while celebrated, is not consistent with the actual text of the First Amendment. And it’s not a particularly close call.

Reader Discussion

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on March 08, 2019 at 10:24:25 am

Don't leave us hanging! What kinds of speech at the time of the founding were considered proscribable??

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OH Anarcho-Capitalist
on March 08, 2019 at 10:50:13 am

The author is definitely wrong. Black didn't ignore "the freedom of." Rather, he read "the freedom of" to mean what it says: "the freedom of." This doesn't mean that author's implied perception of what is acceptable speech, or what James Madison though acceptable speech was. "The freedom of" means "the freedom of." Thanks.

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John Smith
on March 08, 2019 at 11:14:41 am

Isn't it possible that an absolutist reading like Black's makes perfect sense, to both laymen and scholars alike, and is perfectly non-problematic, in the intended filed of its application--the US Congress? All of the exceptions bandied about--libel, fighting words, obscenities, etc--would have been regarded as matters for the states, as within their police power which the US government famously doesn't have, and the 1A only enjoins Congress. Under what enumerated Article I power would Congress have had the occasion to make a law dealing with libel or obscenity? Clearly the Framers, or some of them anyway, were concerned enough about the possibility that they added the 1A, but still it strikes me as non-problematic prior to incorporation against states and assuming Congress actually kept within its original narrow bounds. As for proscribable speech--under what power could Congress have proscribed it?

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QET
on March 08, 2019 at 11:16:47 am

Professor, I must say that your argument is unsound and unpersuasive. Assuming that the Constitution is written by a bunch of lawyers the way lawyers write, which is reasonable given the number of lawyers at the Convention and well-informed non-lawyers, too, there is a better argument.

The Constitution is a bunch of lawyerly catch-phrases meant to invoke established legal doctrines. The greatest errors in Constitutional interpretation arise from the lazy and poorly considered practice of reading the Constitution as if written by an average Joe-Schmoe for an audience of like minded citizens. That is simply not true. It is a document written by lawyers for an audience of well-informed citizens and lawyers.

If my assertion be true, then we read the Constitution poorly if we ignore existing doctrine at the time of the Convention. Freedom of speech and freedom of the press are two well-documented doctrines that have a common source for all of the Convention delegates. Lord Justice Blackstone wrote Commentaries on the English Common Law around 1769 and has been found in many Founders' libraries. In Book 4, paragraphs 152-153, Blackstone says,
"The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty 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. A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. "

The point of Liberty of the Press, or its Constitutional variation Freedom of the Press, is no prior restraint on publication. This calls back to the debate that MP John Milton argues against in Areopagitica, the foundational argument for Freedom of the Press to the House of Commons (in a pamphlet) against the Licensing Order of 1643.

The key idea is prohibiting Congress from making laws requiring a license to publish with a press or by speech. Instead the public may hear all ideas. Then ideas that are poison that should have been kept in the cabinet but have been released can be punished. The Peter Zenger case (1733) is often cited as the source of the immunity from libel or slander for printing the truth. While Zenger is not written into the Constitution, it fits with a prosecute or sue after the publication system and not prior restraint of publication.

The case of "abridgeable" speech is truly a matter of sanctionable speech. The Supreme Court has treated this First Amendment protection as a freedom of expression free of sanction for abuses. NYT v. Sullivan takes this even further makes proving libel and slander terribly difficult. Now there is no need for truth because anyone who would be in the public eye has an overwhelmingly high burden of proof. This essentially flies in the face of the Blackstone and Milton approach.

The sanction for dishonest publication needs to be capable of being exercised. The Sullivan Court wanted to prevent abuse of process (lawyerly phrase). They wanted to keep the press from being attacked by litigious public persons for questionable claims of libel and slander. In the process the Supreme Court has re-written the First Amendment.

We need to have knowledge of Blackstone, Milton, and Zenger more widely known and appreciated before we deal with the problems of current First Amendment case law. That starts with law professors knowing the case law and history before using weak and ill-considered parsing arguments.

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Jeffrey Heck
on March 08, 2019 at 11:49:46 am

The first amendment also contains freedom of religion, which means I don't have to live by your morality and you don't have to live by mine--we are only subject to laws necessary to ensure equal freedom--prohibitions on stalking, libel, rape, theft, murder, treason, etc.

This is confirmed by the thirteenth amendment. Slaves could be punished by their masters for violating the master's morality, the masters free neighbors could not. Now that we are all free, none of us can be punished for the master's (elites) morality.

So in the context of "freedom of speech", so long as you aren't violating other people's rights, you can speak in ways that violate other's morality--like obscenity, blasphemy, campaign finance, sitting quietly during the pledge or kneeling during the national anthem, etc.

The first amendment is absolute in the sense that you can not restrict it by your moral principles because then you're forcing your morality upon me and thereby treating me like a slave rather than an equal---someone who can create and live by their own moral code, i.e., live by their own religion, just like you.

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Milton
on March 08, 2019 at 12:20:37 pm

Say a Muslim Judge said that free speech is not absolute but is limited by Muslim morality. You would say that freedom of religion means you don't have to obey Muslim morality, you only have to obey laws necessary to ensure equal liberty--like prohibitions on libel, stalking, true threats, etc. Freedom of religion isn't just about observing religious holidays, it's about following the religious moral code, and not having to follow any other religious moral codes.

In the same way, when you tell me that free speech is not absolute but is limited by Christian morality, I tell you that freedom of religion means that I don't have to obey your morality, only you do.

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Paul Saintless
on March 08, 2019 at 12:21:57 pm

Interesting. But please explain how post-hoc punishment for poison is functionally different from licensure? In either case, the State must decide, and will decide, what is and isn't poisonous or criminal. The punishment the UK now metes out to those, say, who publicly question whether Islam might not be a religion of peace: does it not have the same effect as were any speaker on Islam required to obtain a prior license from the government? In either case, the speaker is faced with violating the law or remaining silent. And Congress does not appear under Article I Section 8 to have the power to require prior licensure of publication or of punishing poison, so I am still at some loss to understand how the Framers thought the 1A would operate in practice.

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QET
on March 08, 2019 at 13:16:58 pm

And yet patent and copyright law, both constitutionally protected implicate *some* measure of restriction on speech.
Yes, they may be said to present as "property rights" IN speech - but are restrictions nonetheless.
What other "speech" may be so protected.

Well, libel, perhaps as I have a property right in my good (assuming, of course, that I have such good) name.
How can it be that one property right in speech is to be afforded protection while the other is not.

I think that Rogers, echoing others is correct. In order to properly apprehend the protections, implications and applications of the First, we MUST review and understand the historical reality / conception AT THE TIME the First was crafted; also, as another commenter has suggested, and he is supported by some fine writing by McGinnis and Rappaport, we OUGHT to view COTUS as a LEGAL document employing numerous "legal terms of art" in order to best understand and apply COTUS.

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gabe
on March 08, 2019 at 13:32:54 pm

Really, this needs clarification? The difference is between policing thoughts and policing actions. Prior restraint means that you cannot say any thought without government permission. Punishment (criminal) or liability (civil libel suit) after the publication can focus on actual actions undertaken. This allows honest thinking in advance, not just politically correct thought. Libeling (publishing falsehoods) about a person should always be subject to restraint. The difficulty in imposing the restraint is the only issue coming from NYT v. Sullivan.

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Jeffrey Heck
on March 08, 2019 at 13:37:37 pm

Your statement may accurately reflect JS Mill's philosophy and the post court packing Supreme Courts. It does not accurately reflect Freedom of the Press philosophy or jurisprudence before the 1930's. My point is that parsing "freedom of speech" and "speech" as different terms in Constitutional jurisprudence is not a reasonable interpretation of actual Constitutional history. This is a historical and philosophical argument. An argument about what "is" and "was."

You are arguing what "ought to be." This is not the same type of argument and immaterial to my point. I would also argue it is also immaterial to the professor's original article, too.

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Jeffrey heck
on March 08, 2019 at 13:53:33 pm

Please don't equate thought with publication. Until the technology becomes available, you cannot be restrained, ex ante or ex post, from thought. Blackstone's phrase "liberty of private sentiment" is nonsense. Even in the Soviet Gulag one still had "liberty of private sentiment." What one did not have was liberty of publishing that sentiment, whether by speech or print, whether to one or to thousands. It's the same "liberty" that people with locked-in syndrome have. Speech is action, and I see no functional difference between licensure of speech ex ante and criminal prosecution of speech ex post. Actually, I do see a difference: under licensure, you can be denied the right to publish but (presumably) are not prosecuted for seeking the license.
So yes, this really needs clarification.

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QET
on March 08, 2019 at 15:03:35 pm

You say: "It [the Constitution] is a document written by lawyers for an audience of well-informed citizens and lawyers."

I say the Constitution is a document written by lawyers for an audience of not so well-informed citizens and non-lawyers.

The fact seems to be that the lawyers' and the citizens' had different definitions of key terms like freedom, liberty and the general welfare. This created immediate problems that were resolved in favor of the citizens' definitions in the election of 1800. It was only after 1900 and the resurrection of the vile Federalist Papers that lawyers' definitions came to dominate these sorts of discussions.

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EK
on March 08, 2019 at 15:05:37 pm

So you can practice your religion without practicing your religion's morality--that is, you can have freedom of religion without freedom of morality? Or does your religion simply not include any morality--is it belief all the way down, and you can do as you please?

For me, the purpose of the religion is to practice the moral code. Jesus wanted first for us to practice the golden rule, and second to believe he was Christ. Not believe he was Christ, and then, only if he wanted, practice the golden rule.

Heaven is for people who act moral, not just those who accept certain beliefs. God is concerned with first with action, and only second with belief.

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Catholic Ivan
on March 09, 2019 at 07:58:31 am

Webster's 1828 dictionary says this about the word FREEDOM:

FREE'DOM, noun

1. A state of exemption from the power or control of another; liberty; exemption from slavery, servitude or confinement. freedom is personal, civil, political, and religious. [See Liberty.]
2. Particular privileges; franchise; immunity; as the freedom of a city.
3. Power of enjoying franchises.
4. Exemption from fate, necessity, or any constraint in consequence of predetermination or otherwise; as the freedom of the will.
5. Any exemption from constraint or control.
6. Ease or facility of doing any thing. He speaks or acts with freedom
7. Frankness; boldness. He addressed his audience with freedom
8. License; improper familiarity; violation of the rules of decorum; with a plural. Beware of what are called innocent freedoms.

Look at the number one definition:

1. A state of exemption from the power or control of another; liberty; exemption from slavery, servitude or confinement. freedom is personal, civil, political, and religious. [See Liberty.]

I don't see any "qualifiers" there.

Pettifogging lawyers, they want to keep it confusing, it's called job security !

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Jim Lewis
on March 09, 2019 at 12:04:58 pm

It's interesting to read articles that rely on Newspeak, particularly "blackwhite".

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Bruce Hall
on March 09, 2019 at 15:37:35 pm

"...the vile Federalist Papers..."

A bit strong, I would think.

I think that McGinnis and Rappaport present a credible argument that COTUS is indeed comprised of numerous "legal terms of art". These "terms" supplement / complement the more general or mundane text which, as you rightly suggest, was intended to be read AND understood by a general audience and not one necessarily schooled in legal reasoning or interpretation. Such terms were intended to "specify" both meaning and interpretation of the relevant clauses, many of which may be subject to "ambiguous" readings.
Consider HOW ambiguous COTUS interpretation would be without the use of "legal terms of art." Goodness, there would not be a single line of text that could NOT be construed in such a manner as to support the ever changing judicial fantasies of some jurists.

consider "speech", "freedom of" - how may we best understand the protections that were intended without recourse to the history. That very history MAY be unpacked by reference to an understanding of the "legal" import of the terms AT THE TIME of the BOR.
Further, as Madison recognized, words / language is susceptible to change / corruption. Thus, it would be a mistake to attempt to interpret text, especially "plain" text with recourse ONLY to today's definition / understanding. Consequently, the use of "legal" terminology limits the range of interpretive latitude that a jurist may deploy (and I choose "deploy" intentionally as opposed to "employ"). I believe that this is precisely what the Crafters intended.
In short, not only limited governance BUT also limited Judicial latitude (read: governance).

I read COTUS as a mix of legal text AND plain language.

Check out some of Maginnis / Rappaport essays / papers.

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gabe

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