Lawrence Solum on Allen Kamp on Constitutional Interpretation and Technological Change
Michael Ramsey
At Legal Theory Blog, Larry Solum notes this essay by Allen Kamp (John Marshall Law School): Constitutional Interpretation and Technological Change (49 N.England L. Rev. 201 (2015)), and comments:
Kamp may be claiming that there would be universal agreement that if the original meaning of the First Amendment were limited to "speech" in the sense of oral communication and "press" in the sense of material produced by printing presses, then it would nonetheless be normatively justified to adopt an amending judicial construction that extended to all forms of expression. My sense that is many academic originalists would not agree.
Of course, that would not be the end of the matter from an originalist perspective. One might believe that "speech" actually meant "expression." Or one might believe that the original meaning of the Ninth Amendment sanctions the protection of expression outside the enumerated right to free speech and press. And some originalists believe that the constraining force of the constitutional text is defeasible and that one of the defeasibility conditions authorizes Courts to follow precedent that is inconsistent with original meaning, but not to extend such precedents beyond their current bounds (narrowly construed).
But assuming that none of those outs is available, then I should think that if the text only protects oral communication and the use of printing presses, then judges should be constrained by the text. In any event, that would be my view.
Agreed, but I would be inclined to take the view that, as Professor Solum suggests, the freedom of speech includes spoke and written communication. Otherwise it would appear that the First Amendment did not protect handwritten communication, which seems unlikely.