Originalism in the Blogs: Eugene Volokh on the Freedom of Speech
Michael Ramsey
Eugene Volokh: What Part of "Make No Law" Don't I Understand?
A sophisticated and insightful post by Professor Volokh, who's becoming the premier scholar of the original meaning of the free speech clause. The central point:
[T]he 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.
As a result, he suggests (and I agree) there's no inherent contradiction between the First Amendment's apparently absolute language ("shall make no law") and the historical practice of restricting some kinds of "speech."