The Limits of Constitutional Rights

The Limits of Constitutional Rights August 9, 2011

This post by Eugene Volokh reminded me of a recent exchange I had on the old blog with someone who thought that no possible restrictions were permissable when it came to a constittutional right. The argument goes like this, that since the First Amendment begins with “Congress shall make no law” that it literally forbids the government from enforcing any law whatsoever regarding freedom of speech — including laws against libel, fraud and perjury. Volokh provides one answer to that argument by pointing to history:

I’ve heard many people argue that “Congress shall make no law … abridging the freedom of speech, or of the press” means that all speech restrictions — or at least all federal speech restrictions — are unconstitutional, period. Which part of “make no law” don’t you understand?, some people colorfully argue. Well, I understand “make no law” just fine, as do those who support the constitutionality of some speech restrictions. The real difficulty is with “the freedom of.”

Let’s begin with “the freedom of.” Note that the First Amendment doesn’t say that Congress shall make no law restricting speech or press; rather, Congress can’t restrict “the freedom of speech” and “the freedom of the press.” Maybe that’s just a fancy way of saying “speech” and “press.” But maybe it suggests that “the freedom of speech” and “the freedom of the press” were references to broader legal concepts that were used to refer to limited freedom, not unlimited freedom. For instance, perhaps the freedom of speech and of the press were understood as excluding libel and slander, or possibly even obscenity, threats, and some other kinds of speech.

And he’s right about this. The question is not the meaning of “shall make no law,” the question is the meaning of “freedom of speech” or “freedom of the press.” Does the freedom of speech include the freedom to engage in fraud? Or to threaten someone’s life? Or to commit perjury? Volokh points out that the historical answer to this question is no, that those who wrote the First Amendment nonetheless accepted such restrictions as legitimate:

This interpretation is supported, I think, by the pre-First-Amendment state constitutional free press provisions (and, much less commonly, free speech provisions) that are written in absolute terms, yet coexisted with some speech restrictions, chiefly libel law. Thus, from Virginia in 1776: “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.” From Pennsylvania in 1776 (closely followed by Vermont in 1777): “That the 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.” From Maryland in 1776: “That the liberty of the press ought to be inviolably preserved.” From North Carolina in 1776: “That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.” From Massachusetts in 1780 (closely followed by New Hampshire in 1784): “The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth.” From Georgia in 1789: “Freedom of the press and trial by jury shall remain inviolate forever.” (Provisions in later state constitutions were much more likely to specifically provide that “abuse” of the freedom could lead to liability, but my sense is that those new provisions were not seen as deliberately shifting from a categorical protection for speech and press to a more limited protection.)

To my knowledge, these provisions were never seen as categorically banning libel and slander law. My sense is that there were nearly no calls, even unsuccessful calls, for reading those provisions that broadly — people did think that the provisions limited the scope of slander and libel law (both civil liability and the law of criminal libel), but not that the provisions categorically forbade such liability. Some saw the freedom of the press as broader and some as narrower. Some saw the freedom of the press as including the freedom to publish what had been earlier seen as “seditious libel” and some saw it as not including this. Some saw it as chiefly forbidding licensing schemes (archetypical “prior restraints”) and perhaps judicial injunctions, while others saw it as also limiting the imposition of civil and criminal liability by juries.

But nearly everyone, as best I can tell, saw “freedom of speech” and “freedom of the press” as providing less than complete constitutional protection for spoken or printed words. And this suggests that the term “freedom of” referred to some understanding that there is a proper scope of such freedom (even if the scope was unsettled in some particulars), rather to unlimited freedom to say or print anything one pleases. It’s much like, if tomorrow a state enacted a law protecting “the freedom to marry,” we probably wouldn’t think that it means the freedom to marry a 10-year-old, or the freedom to marry one’s daughter, or (depending on the circumstances) even the freedom to marry several people at once. “The freedom to marry” would be seen as referring to a broad but not unlimited concept that is less than the freedom to marry anyone one pleases.

Exactly right. But he leaves out the principled argument behind this, which is that the reason for such limits on those freedoms is because they are necessary to protect the equal rights of others. Jefferson expressed this concept well:

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.

Freedom of speech does not include the right to commit perjury because perjury violates another person’s right to a fair trial. It does not include fraud because fraud violates another person’s right to informed consent when transferring their property (including money). We can, of course, have disagreements on how exactly those restrictions should be drawn, but the general premise should be uncontroversial. So when the First Amendment says that Congress shall make no law abridging the freedom of speech, those things simply don’t fall under such a freedom; they are rightfully restricted in order to protect the equal rights of others. This is perhaps the most basic axiom of the civil libertarian position, that every individual has the right to do or say anything they like as long as doing so does not violate the equal rights of another person or harm them against their will. It is the cornerstone of my entire approach to the concept of freedom.

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  • arakasi

    I have argued in the past that if the 2nd Ammendment truly prevented any prohibitions whatsoever on every individual’s right to keep and bear arms, then there is no constitutionally sound way to prevent convicted violent prisoners from possessing firearms in their cells

    Unfortunately, once you start drawing lines between protected and unprotected possession, just as in the difference between protected and unprotected speech, the line of demarcation tends to get awfully fuzzy. Just about everyone accepts that there need to be some restrictions – they just tend to put the line just a little bit past where it would affect them

  • The courts are generally more careful than the average person, thankfully. When it come to the First Amendment, the courts have generally drawn the exceptions very narrowly — and this is a very good thing.

  • ajb47

    “This is perhaps the most basic axiom of the civil libertarian position, that every individual has the right to do or say anything they like as long as doing so does not violate the equal rights of another person or harm them against their will.”

    I’ve believed this since high school but never thought to look for a label for it. Thanks.

    AJ

  • Oddly, the right-wingnuts who take extremist views about the 1st amendment usually support unconstitutional restrictions on pornography.

  • Definitely a good explanation. It puts it into the familiar cliche, “Your right to swing your fist ends at another’s nose.” Fraud, libel, and such are relatively clear examples of speech that can cause real harm.

    Though I worry now that I’ve said that, some nut will argue that pointing out logical fallacies and presenting evidence to argue against a religious idea is a form of “harm.”

  • juice

    The question is not the meaning of “shall make no law,” the question is the meaning of “freedom of speech” or “freedom of the press.”

    Then that leaves interpretation of these vagaries to the people in magic black robes. If I tell you that you have a right, but the exercise of that right is limited depending on how the legal system interprets it, then it’s not a right. It’s a privilege that can be taken away after some court case sets a precedent.

    For instance, perhaps the freedom of speech and of the press were understood as excluding libel and slander, or possibly even obscenity, threats, and some other kinds of speech.

    Perhaps. Maybe. Who knows? Who knows what your rights really are? Ah, the high priests in the magic robes will tell us when our privileges have been revoked (for our own good).

  • Abby Normal

    It does seem to be a tautology. What speech is free speech? The speech we haven’t outlawed. Ed does provide a great framework for determining what is and is not permissible speech in that last paragraph and from the writings of the founders they were certainly working from a similar perspective. But in and of itself, “shall make no law… abridging the freedom of speech,” is a useless statement for determining what types of speech can be regulated. Perhaps the Constitution should have been written with citations and asterisks.