This essay examines the First Amendment's free speech clause by analyzing the framers' original motivations and historical context. Drawing on James Madison's draft language, the 1735 John Peter Zenger trial, and subsequent Supreme Court interpretations, the paper argues that the framers prioritized protecting critical and unpopular expression above all else. It also explores the tension between the amendment's seemingly absolute language and historically accepted limitations on speech — including obscenity standards, state-level restrictions, and national security concerns — concluding that the framers envisioned robust public discourse as essential to a free government.
Although the concept of "freedom of speech" as outlined in the First Amendment to the Constitution appears relatively straightforward, numerous cases have arisen over the course of the country's history requiring this concept to be refined and interpreted for situations the framers could have scarcely imagined. However, the framers' motivations for protecting speech remain just as relevant today. By examining precisely how and why the framers opted to protect speech in this way, one may begin to understand which kinds of speech they intended to protect, as well as possibly acceptable limitations on speech and the rationales for them.
Before examining some of the framers' motivations for protecting freedom of speech via the First Amendment, it is useful to briefly consider the text itself as a means of appreciating precisely which aspects of the amendment deal with "freedom of speech" and how these portions contribute to the larger notion of a "free government." The entire First Amendment is relatively short, consisting of the following statement: "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" (U.S. Constitution 1788). The amendment is broken into three distinct clauses, all covering different aspects of expression and thought. Examining the clause most relevant to free speech helps reveal some of the framers' motivations for protecting speech in this way.
It is important to note that the clause discussing freedom of speech also contains references to the press, because when one discusses "freedom of speech" one is really discussing the freedom of expression — a concept that represents a somewhat refined version of the sentiment expressed in James Madison's first draft of the Bill of Rights, when he wrote that "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, one of the great bulwarks of liberty, shall be inviolable" (Linder, 2011). This conflation of speech with the press reveals some of the particular considerations the framers had in mind when they decided why and how to protect the freedom of expression. Although they undoubtedly meant to protect the actual act of speaking, in that particular historical moment it was more often published material that made governments eager to censor or otherwise quash the freedom of expression.
For example, the case that formed a large part of America's common law notions regarding freedom of speech was printer John Peter Zenger's trial in 1735, in which he and his editorialist were charged with seditious libel for an editorial critical of the governor of New York. The jury declared them not guilty, and "as a result of the precedent set in the Zenger case, and the reluctance of juries to support prosecutions for seditious libel, the common law of seditious libel in America became generally unenforceable" (Linder, 2011). Thus, the kind of expression the framers intended to protect was first and foremost unpopular or critical speech and texts, because this is the expression most at risk from government censorship.
However, by protecting all expression — and not just the explicitly political — the framers also ensured that the country would be equipped with a vibrant public discourse in which a multiplicity of ideas might be considered and refined. In turn, this creates a kind of ideological robustness, in the same way that a diverse gene pool protects a population from being wiped out by a single pathogen. This is perhaps the most explicit way in which the protection of free speech helps to foster a free government, because it ensures that the interaction between the state and the individual is open and transparent, so that criticism may not be excluded in the name of safety or security. With this in mind, it would appear that the framers intended no limitations on protected speech, but the reality is somewhat more complicated.
"Obscenity, state laws, and national security exceptions"
By examining some of the framers' contextual considerations when formulating the First Amendment, it becomes clear that while the framers likely did not envision any limitations on protected speech at the national level, they would have otherwise accepted some limitations informed by the widely shared biases of the time, or limitations enacted at the state level. In particular, the explicit inclusion of a free press alongside speech — as well as the antecedent of the John Peter Zenger case — reveals that the framers were seeking to protect critical, unpopular, or otherwise revolutionary expression first and foremost, with the added benefits bestowed by the free commerce of all ideas across society.
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