The Freedom of Speech and of the Press Clause

Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .

—Eugene Volokh

Introduction

Free speech/free press law is sometimes described as the tax code of constitutional law. But no matter how complex this law is, and while some of the complexity may be needless, much of it is inevitable. In many ways, communication is the most complicated of human activities, and no simple rule can deal properly with all the different kinds of harms that it can cause—or all the different kinds of harms that restricting communication can cause.

Original Meaning of Freedom of Speech and Press

What exactly did the Framers mean by “freedom of speech, or of the press”? Some recent scholarship offers intriguing arguments. Professor Jud Campbell, for instance, has argued that the original “understanding of Founding Era expressive freedom” focused on the “natural rights” of “speech and press freedom[].”¹ These rights, he explains, “were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good,” although “press licensing” was forbidden.² Under that view, “[s]edition laws were thus facially consistent with the freedom of opinion when confined to false and malicious speech” about the government.³ Historian Wendell Bird, on the other hand, has suggested that the original understanding was that speech critical of the government was broadly protected and that sedition laws were seen as unconstitutional.⁴

To date, no definitive scholarly consensus on this question has emerged. The debates in the First Congress, which proposed the Bill of Rights, are brief and unilluminating.⁵ Early state constitutions generally included similar provisions, but there is no record of detailed debate about what those state provisions meant.⁶ The Framers cared a good deal about the freedom of the press. This care is reflected in the Appeal to the Inhabitants of Quebec, written by the First Continental Congress in 1774. The “freedom of the press,” the Appeal noted, promotes “the advancement of truth, science, morality, and arts in general.” It also advances the “diffusion of liberal sentiments on the administration of Government,” facilitates the “ready communication of thoughts between subjects,” and “promot[es] . . . union among them.” With freedom of the press, “oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.”⁷

The statement mentions some of the values that the Founders saw as inherent in the principle of freedom of the press: the search for and attainment of truth, scientific progress, cultural development, the increase of virtue among the people, the holding of governmental officials to republican values, the strengthening of community, and a check on self-aggrandizing politicians. But broad statements such as this tell us less than we would like to know about what “the freedom of the press” meant to the Founders as a rule of law. This history also does not provide clear rules about when the freedom would yield to competing concerns. Moreover, these statements do not resolve whether the freedom prohibits a limitation on speech only before it occurs—a so-called prior restraint—or whether the government can also punish a person after he engages in speech.

Few reported Founding-era court cases interpreted the federal and state free speech and free press clauses, and few Founding-era political controversies excited detailed discussion of what the clauses meant. The governments of the time were small, and the statute books were thin. Not many states passed laws restricting commercial advertising. There appear to have been no prosecutions for obscenity in the United States until 1815.⁸ Some states had blasphemy laws, but they appear not to have been enforced until the 1810s.⁹ Apparently, no laws banned campaign spending or anonymous speech.¹⁰

What inference can be drawn from this lack of regulation? Then, as today, the government did not ban all that it had the power to ban, but the fact that it did not regulate certain types of speech does not necessarily mean that such speech was constitutionally protected. The paucity of such bans meant that few people in that era had occasion to define carefully what the constitutional boundaries of speech and press protections might be.

The Sedition Act

The most prominent free press debate following the Framing concerned the Sedition Act.¹¹ In 1798, the United States was fighting the so-called Quasi-War with France. President John Adams was a Federalist, and the Federalist Party controlled both houses of Congress. The Democratic-Republican Party was in the minority. Federalists suspected that many Democratic-Republican stalwarts sympathized with France and the French Revolution and thus were fomenting disloyalty. Congress consequently enacted the Sedition Act.¹² This statute made it a crime to publish “any false, scandalous and malicious writing or writings . . . with intent to defame” the government, Congress, or the President. The Vice President was not covered by the statute. It was also a crime “to stir up sedition within the United States, or to excite any unlawful combinations . . . for opposing or resisting any law of the United States.” Finally, the law prohibited “aid[ing], encourag[ing] or abet[ting] any hostile designs of any foreign nation against the United States, their people or government.” Several publishers who were critical of the Federalist government were convicted under the law, often under rather biased applications of the falsity requirement.

The Federalists’ actions likely represented a serious constitutional judgment, not just political expediency. Malicious falsehoods about Vice President Thomas Jefferson, a leading Democratic-Republican, were not subject to prosecution. The law was scheduled to expire on March 3, 1801, the day before President John Adams’s term was to end. But shortly before the law expired and after the Federalists lost the 1800 election, Federalist representatives nonetheless tried to renew the act.¹³ Had they succeeded, the act would have punished libels against President Jefferson and the new Democratic-Republican congressional majority. The bill was defeated in the House by a vote of 53 to 49 with all but four Federalists voting for it and all Republicans voting against it.

In 1799, Federalist Congressman John Marshall, who would soon become Chief Justice, defended the constitutionality of the Sedition Act (though he had disapproved of it as a policy matter).¹⁴ The free press guarantee meant “liberty to publish, free from previous restraint,” so there could be no requirement that printers must be licensed or that their material must be approved before publication. However, the right did not include “the liberty of spreading with impunity false and scandalous slanders, which may destroy the peace, and mangle the reputation, of an individual or of a community.”¹⁵

Here, Marshall echoed the British law as expounded by Sir William Blackstone.¹⁶ Under this view, criminal punishment of some forms of speech after publication was constitutional, at least if the punishment was consistent with the traditional rules of the common law. Other early American political leaders, such as James Madison, the principal drafter of the Bill of Rights, argued the opposite. Madison contended that Blackstone’s “idea of the freedom of the press can never be admitted to be the American idea of it.” Rather, “a law inflicting penalties on printed publications would have a similar effect with a law authorizing a previous restraint on them.”¹⁷

Likewise, Marshall and some other Federalists argued that freedom of the press must necessarily be limited. Marshall wrote that “government cannot be . . . secured, if by falsehood and malicious slander, it is to be deprived of the confidence and affection of the people.”¹⁸ Madison and other Republicans disagreed. Madison argued that even speech that creates “a contempt, a disrepute, or hatred [of the government] among the people” should be tolerated and that the only way to determine whether such contempt is justified is “by a free examination [of the government’s actions], and a free communication among the people thereon.”¹⁹

It was as if half the country read the constitutional guarantee one way and half read it the other way. These debates illustrate that there was little consensus even on such fundamental questions as whether the free press guarantee prohibited prior restraint only on publications critical of the government or also forbade punishment for “seditious” speech once it was made.

The Founding generation undoubtedly believed deeply in the freedom of speech and of the press, but then, as now, these general terms were understood differently by different people. Many people did not think about their precise meaning until a concrete controversy arose—and when a controversy did arise, people disagreed sharply on that meaning.

Consensus Views on Founding-Era Practice

On some questions, it is possible to have a good idea of what the Framers thought based on a combination of pre-Framing, Framing-era, and post-Framing evidence. First, traditional libel law was seen as permissible. Several state constitutions also secured “freedom of the press” and “liberty of the press.”²⁰ Under these constitutions, defaming another person was understood to be constitutionally unprotected.

Second, the Free Press Clause covered the press as technology.²¹ This right was enjoyed by all who used printing presses to communicate to the public at large. The right was not limited to the press in the sense of a specific industry or occupation. Professional publishers and journalists were not seen as having any more constitutional rights than everyone else had.²²

Third, Framing-era law treated conventionally symbolic expression as tantamount to verbal expression. For example, the display of paintings, liberty poles, and the like was considered speech. Likewise, a burning effigy was also protected. Such communications could be punishable as libel if they conveyed false and defamatory messages about someone, but symbolic and verbal expression would also be equally covered by the freedom of speech or of the press.²³

Fourth, Framing-era sources treated civil tort liability for speech the same as it treated criminal liability for constitutional purposes. Decisions from Vermont in 1802 and South Carolina in 1806 were the very first court cases setting aside government action on constitutional freedom of expression grounds.²⁴ These cases involved civil libel verdicts that were set aside because of the state constitutions’ petition clauses. Similar cases from that era applied the same principle to state free speech and free press clauses.²⁵

Originalism, the Free Speech Clause, and the Supreme Court

McIntyre v. Ohio Elections Commission (1995) illustrates the continuing debate over the original meaning of the clause on the U.S. Supreme Court.²⁶ The question presented was whether the government could outlaw anonymous advocacy related to elections. McIntyre distributed an anonymous leaflet opposing a school tax levy. By a vote of 7 to 2, the Court held that the Free Speech Clause protected this anonymous electioneering. The majority dealt with the question based on the Court’s twentieth-century case law and twentieth-century First Amendment theories. Justices Clarence Thomas and Antonin Scalia, the Court’s most committed originalists, focused on the original meaning and reached different results.

Both Justices recognized that there was “no record of discussions of anonymous political expression either in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions.”²⁷ Both recognized that much political speech in the time of the Framers, such as the Federalist Papers, was anonymous. Much political speech justifying resistance to Parliament before the Revolution was also anonymous.

To Justice Thomas, the Founders’ use of anonymous speech was dispositive. The Federalist Papers reflect that the Framers would have regarded anonymity as a vital aspect of the freedom of speech, particularly political speech. Justice Scalia took a narrower view of what can be accepted as evidence of original meaning apart from the text of the provision itself. Scalia wrote that “to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right.”²⁸ Rather, Scalia suggested that the legislatures simply chose not to prohibit the speech even though they had the constitutional power to do so.

Thomas produced evidence that some Founding-era commentators saw anonymous commentary as protected by “the Liberty of the Press.”²⁹ Scalia countered that many of these comments were mere “partisan cr[ies]” that said little about any generally accepted understanding. Thomas found the evidence sufficient to justify reading the First Amendment as protecting anonymous speech. Scalia did not think the historical evidence of what people did necessarily shows much about what people believed they had a constitutional right to do; instead, he turned to American practices of the 1800s and the 1900s, a source that he considered authoritative where the original meaning is uncertain. On this subject, even among originalists, consensus remains elusive.

The Supreme Court’s Free Speech Doctrine

The Supreme Court’s free speech and free press law has not much been influenced by original meaning. Instead, it stems primarily from the experience and thinking of the twentieth century. The Court first began to hear a wide range of free speech cases only in the late 1910s. This approach has produced several general free speech principles.

First, the free speech/free press guarantee restricts only government action. The clause does not limit action by private employers, property owners, householders, churches, universities, and the like. State statutes may provide protection against privately imposed speech restrictions. For example, about half of the states provide some such protection for speech or other forms of political activity,³⁰ but those are matters of legislative decision, not constitutional command.

Second, the free speech/free press guarantee applies equally to federal and state governments. It includes local governments as well as all branches of each government. In particular, the civil courts are subject to the First Amendment. For this reason, libel law and other tort law rules must comply with free speech/free press principles.³¹

Third, the free speech/free press guarantee provides essentially equal protection to speakers and writers. It does not matter whether they are members of the institutional press. Newspapers enjoy no more and no fewer constitutional rights than individuals enjoy.³² The medium of communication also generally does not matter. Books, newspapers, movies, and the Internet are treated equally. However, the Court has treated differently over-the-airwaves radio and television broadcasting. For historical reasons, these transmissions have been given less constitutional protection.³³

Fourth, the free speech/free press guarantee extends to any conduct that is conventionally understood as expressive, such as waving a flag, wearing an armband, or burning a flag.³⁴ The guarantee also extends to conduct that is necessary in order to speak effectively. For example, the First Amendment protects the right to use money to buy a public address system or to buy advertising.³⁵ In particular, restrictions on independent campaign expenditures generally violate the First Amendment because effective speaking to the broad public generally requires money.³⁶

Fifth, the free speech/free press guarantee extends to speech about religion, science, morality, social conditions, and daily life, not just to political speech. The guarantee also extends to art and entertainment because “the line between the informing and the entertaining is too elusive for the protection of that basic right.”³⁷ “What is one man’s amusement,” the Court has explained, “teaches another’s doctrine.”³⁸ The guarantee also extends to low-brow expression (such as jokes or even profanity) as well as high-brow expression.³⁹

Sixth, the free speech/free press guarantee extends to all viewpoints, good or evil. There is no exception for Communism, Nazism, Islamic radicalism, or “hate speech,” whatever that term may mean.⁴⁰ Gertz v. Welch (1974) concluded that “[u]nder the First Amendment there is no such thing as a false idea” and that “[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.”⁴¹

These rules apply to content-based restrictions, which focus on what the speech communicates—for instance, by persuading people, offending them, or frightening them. Content-neutral restrictions relate to the non-communicative impact of speech—restrictions on noise, obstruction of traffic, and so on—and are easier to justify. The test for content-neutral restrictions is complicated, but the key point is that the government may generally impose content-neutral “time, place, and manner restrictions” as long as those restrictions leave open ample alternative channels for communication. All such restrictions, however, must be neutral as to content: If they treat speech differently based on content, they are generally unconstitutional even if they focus only on the time, place, and manner of the speech.⁴²

Finally, these rules apply to restrictions imposed by the government acting as sovereign and backed by the threat of jail terms, fines, or civil liability. They also apply to government control of what is said in “traditional public fora,” such as parks, streets, sidewalks, or the post office. But the government has broader (though not unlimited) authority when acting as, for instance, employer, K–12 educator, proprietor of government property other than traditional public fora, subsidizer, speaker, or regulator of the airwaves. The rules for these areas are elaborate.⁴³

Exceptions to Free Speech Protection

The Court has recognized a small set of rather narrow exceptions to free speech protection:

• Incitement: Speech may be restricted if it is intended to persuade people to engage in imminent unlawful conduct and likely to cause such conduct. Outside of this narrow zone, even speech that advocates lawbreaking is constitutionally protected.⁴⁴
• Libel, Fraud, and Perjury: Libel, fraud, and perjury may generally be punished if they consist of knowing lies. Such statements are generally protected if they are honest—even unreasonable—mistakes, but libel law may still award compensatory damages for certain statements about private figures that were honest but unreasonable mistakes.⁴⁵ Libel law also may award punitive damages for honest mistakes on matters of purely private concern.⁴⁶
• Obscenity: Hard-core pornography is punishable if “‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest [i.e., a shameful or morbid interest in nudity, sex, or excretion]”; “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”; and “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”⁴⁷
• Child Pornography: Sexually themed live performances, photographs, and movies that are made using actual children may be punished even if they do not fit within the obscenity test. This standard does not cover digitized pictures, drawings, or text materials, which are constitutionally protected unless they are obscene. The Court has reasoned that child pornography is unprotected because it hurts the children involved in its making, so the exception covers only cases where actual children were involved.⁴⁸
• Threats: Speech that is reasonably perceived as a threat of illegal conduct (not just rhetorical hyperbole) can generally be punished as long as the speaker was at least reckless about the possibility that the speech would be perceived as threatening.⁴⁹
• Fighting Words: Face-to-face insults that are addressed to a particular person and are likely to cause an imminent fight can be punished. More generalized offensive speech that is not addressed to a particular person cannot be punished even if it is profane or deeply insulting.⁵⁰
• Speech Owned by Others: Intellectual property laws, such as copyright law, may restrict people from using a particular expression that is owned by someone else, but the law may not let anyone monopolize facts or ideas.⁵¹
• Commercial Advertising: Commercial advertising is constitutionally protected but less protected than other speech (political, scientific, artistic, and the like).⁵²

1. Jud Campbell, Natural Rights and the First Amendment, 127 Yale L. J. 246, 259 (2017). ↩︎
2. Id. ↩︎
3. Id. ↩︎
4. Wendell Bird, Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign Against Dissent (2016); Wendell Bird, The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment and Fox’s Libel Act (2020). ↩︎
5. David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455, 477–85 (1983). ↩︎
6. Id. at 485–86. ↩︎
7. 1 J. Cont. Cong. 108 (Oct. 26, 1774). ↩︎
8. The Report of the Commission on Obscenity and Pornography 300 (1970). ↩︎
9. People v. Ruggles, 8 Johns. 290 (N.Y. 1811); Stuart Banner, When Christianity Was Part of the Common Law, 16 L. & Hist. Rev. 27, 33 (1998). ↩︎
10. McIntyre v. Ohio Elec. Comm’n, 514 U.S. 334, 372–74 (1995) (Scalia, J., dissenting). ↩︎
11. Wendell Bird, Criminal Dissent: Prosecutions Under the Alien and Sedition Acts of 1798 (2020). ↩︎
12. 1 Stat. 596. ↩︎
13. 10 Annals of Cong. 975–76 (1801). ↩︎
14. Gregg Costa, Note, John Marshall, the Sedition Act, and Free Speech in the Early Republic, 77 Tex. L. Rev. 1011, 1026–28 (1999); Kurt T. Lash & Alicia Harrison, Minority Report: John Marshall and the Defense of the Alien and Sedition Acts, 68 Ohio St. L. J. 435, 435–46 (2007). ↩︎
15. John Marshall, Report of the Minority on the Virginia Resolutions, in 1 Classics of American Political and Constitutional Thought 669, 671 (Scott J. Hammond, Kevin R. Hardwick & Howard L. Lubert eds., 2007). ↩︎
16. 4 Blackstone 151. ↩︎
17. James Madison, The Report of 1800 (Jan. 17, 1800), https://perma.cc/P933-5GEB. ↩︎
18. Marshall, supra at 669–70. ↩︎
19. Madison, The Report of 1800, supra. ↩︎
20. Seth F. Kreimer, The Pennsylvania Constitution’s Protection of Free Expression, 5 U. Pa. J. Const. L. 12, 15 n.9 (2002). ↩︎
21. Eugene Volokh, Freedom for the Press as an Industry, or for the Press as a Technology?—From the Framing to Today, 160 U. Pa. L. Rev. 459, 465–98 (2012). ↩︎
22. Id. Compare Floyd Abrams et al., The Press Clause: The Forgotten First Amendment, 5 J. Free Speech L. 561, 617–20 (2024) (disagreeing with Volokh, Freedom for the Press, supra), with Eugene Volokh, The Press Clause: Important, Remembered, and Equally Shared, 5 J. Free Speech L. 659 (2025) (responding to Abrams et al.). ↩︎
23. Eugene Volokh, Symbolic Expression and the Original Meaning of the First Amendment, 97 Geo. L. J. 1057 (2009). ↩︎
24. Eugene Volokh, Tort Liability and the Original Meaning of the Freedom of Speech, Press, and Petition, 96 Iowa L. Rev. 249 (2010). ↩︎
25. Id. at 251–54. ↩︎
26. 514 U.S. 334 (1995). ↩︎
27. Id. at 360 (Thomas, J., concurring in the judgment). ↩︎
28. Id. at 373 (Scalia, J., dissenting). ↩︎
29. Id. at 362–66 (Thomas, J., concurring in the judgment). ↩︎
30. Eugene Volokh, Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Tex. Rev. L. & Pol. 295 (2012). ↩︎
31. New York Times Co. v. Sullivan, 376 U.S. 254, 277 (1964). ↩︎
32. Volokh, The Press Clause, supra at 505–21. ↩︎
33. FCC v. League of Women Voters of Cal., 468 U.S. 364 (1984). ↩︎
34. Texas v. Johnson, 491 U.S. 397, 404–06 (1989). ↩︎
35. Citizens United v. FEC, 558 U.S. 310, 336–37 (2010); Buckley v. Valeo, 424 U.S. 1, 16 (1976). ↩︎
36. Buckley, 424 U.S. at 26. ↩︎
37. Winters v. New York, 333 U.S. 507, 510 (1948). ↩︎
38. Id. at 510. ↩︎
39. Cohen v. California, 403 U.S. 15 (1971). ↩︎
40. Matal v. Tam, 582 U.S. 218, 246 (2017) (lead op.); id. at 253–54 (Kennedy, J., concurring in part and concurring in the judgment). ↩︎
41. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). ↩︎
42. Ward v. Rock Against Racism, 491 U.S. 781 (1989); McCullen v. Coakley, 573 U.S. 464 (2014). ↩︎
43. Connick v. Myers, 461 U.S. 138 (1983); Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180 (2021); ISKCON v. Lee, 505 U.S. 672 (1992); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995); League of Women Voters, 468 U.S. 364. ↩︎
44. Brandenburg v. Ohio, 395 U.S. 444 (1969). ↩︎
45. United States v. Alvarez, 567 U.S. 709, 717–18 (2012) (plurality op.). ↩︎
46. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). ↩︎
47. Miller v. California, 413 U.S. 15, 24 (1973). ↩︎
48. Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002). ↩︎
49. Counterman v. Colorado, 600 U.S. 66 (2024). ↩︎
50. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Cohen v. California, 403 U.S. 15 (1971). ↩︎
51. Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). ↩︎
52. Sorrell v. IMS Health Inc., 564 U.S. 552 (2011). ↩︎