Wednesday, June 16

The First Amendment Under A Microscope — Part 3 Of 3 — The “Abridgement” Clause

The third pillar of the First Amendment's temple of liberty is the "abridgement" clause:  ...  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.

The "abridgement" clause comprises three distinct but intimately related parts:  freedom of the press, freedom of speech, and freedom of assembly.

-- Freedom of the press

Freedom of the press is arguably the area in which the United States is distinct from all other nations in the latitude permitted the press, electronic and otherwise, in the dissemination of opinions.  It is true enough that virtually all other nations, especially those whose ideological DNA can be traced back to the 18th-century European Enlightenment, have free media, as Will McAvoy (Jeff Daniels) argued in the first episode of the late, lamented TV series The Newsroom. (I say "lamented" because would it not be wonderful to see what McAvoy and his colleagues would make of Trump and his gestating American Fourth Reich?) But even in liberal political cultures like that of Great Britain, there were laws, e.g., the Official Secrets Act, that permitted the government wide discretion in the exercise of prior restraint, whereas prior restraint has always been looked upon with reflexive suspicion in American courts. The last attempt at prior restraint by an American President, when Richard Nixon attempted to suppress publication of the Pentagon Papers, was instrumental in forcing that President's resignation. Furthermore, at least ever since the Zenger case in the 1730s, attempts to abridge freedom of the press have even precipitated the exercise of jury nullification -- and this was over 50 years before there even was a First Amendment. The Zenger jury apparently recognized that, while jury nullification is a dangerous practice, government punishment of a free press is even more so.

-- Freedom of speech

Similar remarks apply to free speech, another area in which the First Amendment permits virtually unprecedented latitude, even judged by the criteria of liberal republics.  Certainly there are laws and regulations in place to regulate issues of procedure and decorum. Free speech is not chaotic speech. It is entirely constitutional for, e.g., school-board meetings to schedule some speakers and not others, and to regulate speech in venues like airport concourses where insufficient regulation would interfere with the primary purpose of venue itself (e.g., airport concourses are intended to facilitate passenger traffic, not to serve as soapbox fora).  But one enduring principle is that, like all laws governing fundamental rights, laws governing free speech must be such as to (a) serve the furtherance of a compelling interest, and (b) even then must utilize the "least restrictive means". Furthermore, while "time, place, and manner" limitations are often upheld, restrictions on free speech and press that are predicated on content usually incur a strict scrutiny level of judicial review, which usually results in content-based restrictions being ruled unconstitutional.

-- Freedom of assembly

In his book The Bill of Rights:  Creation and Reconstruction, Prof. Akhil Reed Amar convincingly argues that much of the defining essence of a republic under Article IV, section 4, can be inferred from the "abridgement" clause in general and from the principle of freedom of assembly in particular. If a republic is, as the Latin derivation implies, a res publica -- literally, "a thing of the people" -- then for a republic to exist, there must be freedom of speech, the freedom to disseminate what is spoken (commonly the press), and the freedom to gather for discussion, debate, and strategizing. Otherwise, there can be no republic.  I.e., the very existence of a res publica presupposes freedom of public discourse -- speech, press, and assembly -- among the public. Consequently, absent the "abridgement" clause, the Constitution's guarantee of a republican form of government would be vacuous. The government would not be a thing of the people because the voice of the people as mediated by a free press, freedom of speech, and freedom of assembly would have been silenced.

The Constitution generally -- and the First Amendment in particular -- should be, to the highest degree imaginable, the civic religion of the American people, guarded with unremitting vigilance and defended by any means necessary.  It should be to the political and civic values of the Nation what John 3:16 is to the values of a observant Christian, what the sh'ma Yisrael proclamation is to observant Jews, what the shahada is to observant Muslims:  a manifesto of who we are and of our highest priorities.  It should be non-negotiable. Anyone -- even the President of the United States -- who claims a higher priority casts himself as an enemy of the Nation who must be dealt with as such.

James R. Cowles

Leave a Reply