The language of the amendment sounds all-embracing, satisfaction guaranteed, warm and cozy; but does it really mean that the law can act against anything either spoken or in print? Hardly! Blackmail is carried on by speech or writing as is blatant and reckless fabrications of the truth. (See Stolen Valor Act, Public Law No: 109-437). The First Amendment does not protect the blackmailer – or the gangster who threatens violence if his demands are not met. The First Amendment is not a license to publish a copyrighted work without permission.
On the contrary, the First Amendment has been interpreted to protect some actions that are not literally spoken or printed. This of course is the Stromberg case. Yetta Stromberg did not use words; she was prosecuted for carrying a red flag. The Supreme Court saw that as symbolic speech, the beginning of a long line of cases in which expressive acts have been protected. This is exactly what we meant about the ellipses’ part; such as, “…no law…abridging the freedom of speech or of the press.”
One very notable example was the 1989 decision in Texas v. Johnson, reversing, on First Amendment grounds, a conviction for burning the American flag in a political demonstration.
Therefore, how then is a judge to interpret the First Amendment? One approach would be to look at what James Madison, its drafter and those who voted for it in 1791 thought they were doing. After all, they prohibited Congress from “abridging the freedom of speech…” The word “the” can be read to mean what was understood at the time to be included in the concept of free speech.
The trouble with that particular approach, or one trouble, is that it is not at all clear what the Framers of the First Amendment had in mind. No definitions of freedom were offered in the congressional consideration, so far as we know, and it is impossible to get any useful guidance on the views of the many state legislators who voted to ratify the amendment.
The evident truth is that those who gave us the First Amendment did not provide a detailed code of how it was to be applied – and as most scholars would agree – is that the Framers did not want to. They deliberately wrote a spacious amendment – a sweeping command” as Justice Holmes put it in his Abrams dissent – and left it to later generations to apply its broad call for freedom to particular situations.
This is where many experts and scholars attest to the brilliance of the Constitution; insofar as it appears to be a timeless document especially when one looks at what particular rights and liberties that is currently under a huge amount of scrutiny. What would the Founders think if come hell or high water an American citizen could be taken off the street and without anything be incarcerated with any due-process rights?
As stated previously, Justice Oliver Wendell Holmes and Justice Brandeis contributed more toward the understanding of the First Amendment than we will ever begin to appreciate. Hopefully in our next installment we will begin to bring you that portion.