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12/18/2017

Cass Sunstein on Jud Campbell on the First Amendment
Michael Ramsey

At Bloomberg View, Cass Sunstein (Harvard): What If the Founders Had Free Speech Wrong? (commenting on Jud Campbell, Natural Rights and the First Amendment (127 Yale L.J. 246 (2017)).  Here is the introduction:

According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean?

 A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.
 
And summarizing Professor Campbell's paper: 

In [Campbell's] account, [the founders' world] was an altogether different political world, and their concepts and principles were not at all like ours.

Campbell starts with the claim that much of the founders’ thinking was organized around the idea of “natural rights” -- rights that people could have without any government at all. Unlike the rights to a jury trial and to due process of law, the right to speak counted as a natural right.

But this didn’t mean that free speech was an absolute, or even that courts should protect it. Far more modestly, it meant that speech could be restricted only to protect the public good, and only when the people’s representatives voted in favor of the restriction.

Campbell offers two important qualifications. First, the founding generation opposed licensing of the press. In that way, they sought to forbid prior restraints on what members of the press could say (without necessarily forbidding subsequent punishment through criminal trials).

Second, they thought that (in Campbell’s words) “well-intentioned statements of one’s views were immune from regulation.” That means that so long as your speech was not meant to mislead or harm others, you were protected.

And from the conclusion:

Campbell’s research raises serious questions for “originalists” – those who believe, with Justices Clarence Thomas and Neil Gorsuch, that the meaning of the Constitution is settled by the original understanding of its terms. Do we really want to go back to the 18th-century view of freedom of speech?