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There Are Not Supposed to Be Any Unwritten Judge-Made Exceptions to the Speech and Press Clause
Andrew Hyman

The Speech and Press Clause in the First Amendment says, “Congress shall make no law... abridging the freedom of speech, or of the press....”  Ever since it was ratified in 1791, speakers and writers have been asking: what exactly does that clause mean, and what (if any) are the exceptions?  In 2017, Judge Brett Kavanaugh commented: “No exceptions would mean no libel laws and no defamation laws....[T]he exceptions here are ultimately a product of common-law-like judging, with different Justices emphasizing different factors....”   But I don’t think that’s right, even though I support Kavanaugh’s confirmation.

There are no unwritten exceptions to the Speech and Press Clause, but even if there were unwritten exceptions, the correct originalist approach would be to limit them to exceptions that were publicly known and understood when the Amendment was written and ratified.  Among those who have said there are no unwritten exceptions to this clause are James Madison (in 1798), Thomas Jefferson (in 1798), and St. George Tucker (in 1803), who all believed that the First Amendment bars Congress from outlawing libel and slander.  Yes, all of those three legal giants really believed that the states were the only authorities empowered to punish libel and slander, leaving Congress powerless in that area.

Madison, Jefferson, and Tucker were correct that there are no unwritten exceptions to this clause, but mistaken that the written words of the Speech and Press Clause mean Congress must allow everyone to say and publish whatever they want.  Scholars as diverse as journalist Anthony Lewis, Justice John Paul Stevens, and National Review pundit Ed Whelan have recognized that the definite article “the” (in the phrase “the freedom of speech”) indicates a specific known degree of freedom, rather than all possible freedom.  If the specific known degree of freedom excludes slander and libel then there is no plausible reason for any judge to concoct unwritten defamation exceptions to the clause.  Similarly to Lewis, Stevens, and Whelan, the great John Marshall argued (in 1799, before he became a judge) that the word “abridge” in the Speech and Press Clause signifies an anti-diminution rule that protects a specific known degree of freedom from shrinkage.  And, the known freedom of speech and press that existed in England and America in 1789 very very clearly did not allow libel or slander.

Putting aside the issue of defamation, it’s true that other aspects of freedom of expression in 1789 would be considered very stingy nowadays, but it turns out that the First Amendment does not demand that we adhere to them.  Consider the prior restraint doctrine.  In England during the eighteenth century, press freedom was guaranteed before but not after publication, and that prior restraint doctrine has been deemed unconstitutional in the United States as to both speech and press.  This U.S. jurisprudence is correct in my view, and I’ll briefly explain why.

In England as in America, prior restraints on spoken words were impractical prior to 1789 even if the governments had wanted to impose them, in contrast to prior restraints on printed publications.  Therefore, as Ashutosh Bhagwat has emphasized, it is unlikely that the First Amendment’s protection of speech merely guaranteed an absence of prior restraint on speech, because that would be guaranteeing virtually nothing.  Ergo, the First Amendment must instead guarantee some freedom from punishment after (not merely before) speaking.  This is fairly clear from the constitutional text, and I believe the same is true for press freedom (which the First Amendment seems to put on the same footing as freedom of speech).  After all, by 1789, the British conception of press freedom was losing its grip in America.  Blackstone had written that the liberty of the press in England does not prevent any punishment after publication, but John Adams stated in 1789 that truth is indeed a defense in a prosecution for seditious libel under the Massachusetts Constitution.  When Adams later became president and signed the Sedition Act, that act likewise included truth as a defense to a charge of seditious libel.  Adams had as narrow an understanding of the First Amendment as any American leader in those days, so it’s very significant that his understanding of free expression was broader than Blackstone’s.  That is, there was an American consensus in 1789 that the British prior restraint doctrine was too stingy.

Even if it were necessary for U.S. courts to make some exception to the words of the Speech and Press Clause (which actually is not necessary), the originalist approach would be to limit those exceptions to the ones that were publicly understood by the people who gave us that clause. Alternatively, SCOTUS conferences can be little constitutional conventions.

MICHAEL RAMSEY ADDS:  Justice Scalia made a similar argument, in a speech reprinted in Scalia Speaks (Christopher Scalia & Edward Whelan, eds. 2017), pp. 201-212, esp. pp. 203-04, explaining why he disagreed with Justice Black's supposedly absolutist reading of the Amendment.

As to Judge Kavanaugh, I think his comments at the Notre Dame conference may have been descriptive rather than normative.  As a descriptive matter, the exceptions often have been crafted in a common law manner.  But he may agree with Justice Scalia as to how the Amendment should be approached.