In a 1999 Northwestern Law Review article, Professor Burt Neuborne noted that the First Amendment has a “textual rhythm” to it, first protecting individual conscience in the religion clauses, then protecting individual expression in the speech clause, and only after that moving to the protection of community action via protections for the press, for petition, and for assembly. Professor Neuborne suggests that the order in which the rights were enumerated was no mistake. Phrased as they are, these rights lay the predicate for a deliberative democracy: individuals are only free to criticize their government in the press, petition for a redress of their grievances, and gather together to debate when they are first free to believe according to their conscience and speak what they believe.
The Framers of this textual rhythm would very likely suggest that while this theory is accurate, it does not capture the whole of their motivation. In the famous words of Justice Brandeis, concurring in Whitney v. California, “[t]hey valued liberty both as an end and as a means.” Tied up in the First Amendment’s original meaning is a notion of civic republicanism—that is, that the concepts of right and duty were not at odds with each other. Instead, rights were secured for the purpose of fulfilling civic duty, and the extent of one’s civic duty was vitally important to determining which rights were fundamental and therefore in need of codification. As applied to the First Amendment, this view suggests that Americans have not only a right but also an affirmative duty to use their expressive protections to engage in the vital work of political deliberation.
If Justice Brandeis is correct about the motivations of the Framers, then the Supreme Court’s modern interpretation of the First Amendment, which views it as protecting a broad swath of speech solely from government infringement, is overinclusive as to what speech is protected and underinclusive as what infringements speech is protected against (Cass Sunstein makes this argument forcefully in his book Democracy and the Problem of Free Speech). A more fitting constitutional paradigm might prioritize the protection of political speech, preventing its censorship by both governmental and non-governmental actors.
For example, the Court might reconsider the protections it has given to obscene and near-obscene speech, as these “are no essential part of any exposition of ideas.” On the opposite side of the coin, the Court might also reconsider its decisions in Miami Herald v. Tornillo, Lloyd Corporation v. Tanner, and Pruneyard Shopping Center v. Robins, which each, for one reason or another, value the interests of private property owners over the arguable First Amendment interests of citizens seeking to use that property as a venue for political speech.
The implications of these decisions—especially Miami Herald, Lloyd Corp, and Pruneyard—loom large over the speech-related policy debates of the digital age. Now more than ever, our deliberative activities have moved from in-person to online venues: blogs, digital news organizations, and social media companies dominate the political landscape. At the time of the Founding, a person could speak freely in the public forum and have influence over the political process; today, influence on the political process requires careful online marketing strategy and the use of privately owned internet service providers. The predominance of internet communications has resulted in a considerable privatization of the public square, and tech firms exert considerable (and some might argue undue) influence on political discourse in the United States.
Evolution in the way Americans communicate with one another has created dramatic—and perhaps intractable—speech-related problems for the modern era. If these problems manifest as legal challenges in the Supreme Court, our Justices should consider the wisdom and spirit of the Founding era in deciding the path forward for First Amendment jurisprudence.