The Originalists Are Coming for the First Amendment

"With its new term starting this month, the Supreme Court will likely confront calls to upend constitutional law yet again. One very possible target is people’s everyday right to voice their political opinions, to speak up, even just to swear.

...a federal court of appeals decided a First Amendment challenge by JD Vance and others. ...the challenge was rejected. But five judges argued that the case might come out differently if only the Supreme Court would start treating First Amendment cases the way it has recently begun treating Second Amendment cases. Specifically, Judge John Bush said that judges should discern the original understanding of free speech in “linguistical meaning” and “evidence of how Americans ordered their lives” in the 1790s.

...Recently, Judge Kevin Newsom of the Court of Appeals for the 11th Circuit said it would be “terrific” if courts started asking “what ‘the freedom of speech’ meant to the founders.” In NetChoice LLC v. Paxton... the Court of Appeals for the Fifth Circuit even criticized the challengers of the law for relying on legal precedent rather than the “original public meaning” of the First Amendment.

...During the founding era, the right to free speech was understood much more narrowly than it is today. Something as simple as swearing or voicing unpopular political opinions might land you on the wrong side of the law. If rules from the 1790s were enforced today, citizens could be jailed for criticizing politicians, public figures could freely use defamation law to punish critics and schoolchildren would have few if any free speech rights.

...Historically, the wrong kind of speech could land you in jail. Laws criminalizing blasphemy, government criticism, tepid sexual content and other speech viewed to be bad or harmful were commonplace at the country’s founding. In the 1770s, the Continental Congress outlawed theater because it was viewed as too culturally English. In the 1790s, Congress, controlled by one party, passed a law making it easier to imprison political opponents. Later, Southern states outlawed abolitionist speech. And throughout our history, the government prosecuted undesirable political minorities. This is not a history we should wish to resurrect."

Link

We really shouldn't have to live as they did over 200 years ago.

The First Amendment has a great deal more to fear from the American left these days than it does the right.

NatMorton said:

The First Amendment has a great deal more to fear from the American left these days than it does the right.

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Seems unlikely since these judges and justices are in a position of power to use their own professed judicial philosophy to limit freedom of speech.

j brown's body said:

Seems unlikely since these judges and justices are in a position of power to use their own professed judicial philosophy to limit freedom of speech.

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You're more likely to get respect for legislative intent from the conservative appointed judges than those appointed by liberals.

NatMorton said:

You're more likely to get respect for legislative intent from the conservative appointed judges than those appointed by liberals.

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What makes you say that and why are you ignoring the argument in the op? Or are you saying that in order to ignore the argument in the op?

If the people had to vote on freedom of speech,how would this question be framed? There are so many subdivisions of freedom of speech. Hate speech,social media trolling,and inviting people to "storm the Bastille" .There are many more. Someone's speech of freedom,is someone else's speech of treason to another group.So,going back to the very beginning of the birthing of Declaration of independence,it would be fascinating to hear what the founding fathers think today,of the use of speech in America.Perhaps, the concern,is how speech has been used as a weapon. Demeaning,trolling and being untruthful about events,are just some methods used. There is a feeling of slight unease,as I write this,due to this very fact. People may not respond in a way that is polite,or fair. I'm uneasy,yes.Surprised no

j brown's body said:

"With its new term starting this month, the Supreme Court will likely confront calls to upend constitutional law yet again. One very possible target is people’s everyday right to voice their political opinions, to speak up, even just to swear.

...a federal court of appeals decided a First Amendment challenge by JD Vance and others. ...the challenge was rejected. But five judges argued that the case might come out differently if only the Supreme Court would start treating First Amendment cases the way it has recently begun treating Second Amendment cases. Specifically, Judge John Bush said that judges should discern the original understanding of free speech in “linguistical meaning” and “evidence of how Americans ordered their lives” in the 1790s.

...Recently, Judge Kevin Newsom of the Court of Appeals for the 11th Circuit said it would be “terrific” if courts started asking “what ‘the freedom of speech’ meant to the founders.” In NetChoice LLC v. Paxton... the Court of Appeals for the Fifth Circuit even criticized the challengers of the law for relying on legal precedent rather than the “original public meaning” of the First Amendment.

...During the founding era, the right to free speech was understood much more narrowly than it is today. Something as simple as swearing or voicing unpopular political opinions might land you on the wrong side of the law. If rules from the 1790s were enforced today, citizens could be jailed for criticizing politicians, public figures could freely use defamation law to punish critics and schoolchildren would have few if any free speech rights.

...Historically, the wrong kind of speech could land you in jail. Laws criminalizing blasphemy, government criticism, tepid sexual content and other speech viewed to be bad or harmful were commonplace at the country’s founding. In the 1770s, the Continental Congress outlawed theater because it was viewed as too culturally English. In the 1790s, Congress, controlled by one party, passed a law making it easier to imprison political opponents. Later, Southern states outlawed abolitionist speech. And throughout our history, the government prosecuted undesirable political minorities. This is not a history we should wish to resurrect."

Link

We really shouldn't have to live as they did over 200 years ago.

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I haven't noticed democrats complainng about pressure from the left, including the Biden/Harris campaign, the FBI and the DNC to silence free speech on META during the 2020 campaign. We know that attack on freedom of speech and thought happened because META owner Mark Zuckerberg admitted to it before the Congress. The silencing of opposition speech. People censored for disagreeing. That's the democrats. Now of course they do what they always do, accuse the opposition of the very things they, the democrats are doing.

j brown's body said:

What makes you say that and why are you ignoring the argument in the op? Or are you saying that in order to ignore the argument in the op?

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I think it's fair to say that liberal judges these days embrace judicial activism to a degree greater than conservative judges.

Integrityrespec said:

I haven't noticed democrats complainng about pressure from the left, including the Biden/Harris campaign, the FBI and the DNC to silence free speech on META during the 2020 campaign. We know that attack on freedom of speech and thought happened because META owner Mark Zuckerberg admitted to it before the Congress. The silencing of opposition speech. People censored for disagreeing. That's the democrats. Now of course they do what they always do, accuse the opposition of the very things they, the democrats are doing.

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Does this mean you're cool with judges curtailing free speech?

NatMorton said:

I think it's fair to say that liberal judges these days embrace judicial activism to a degree greater than conservative judges.

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So I have offered a very real example of the threat originalism is to fee speech, not an empty cliche like this.

j brown's body said:

So I have offered a very real example of the threat originalism is to fee speech, not an empty cliche like this.

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Judicial activism is, by definition, a threat to any ratified law.

NatMorton said:

Judicial activism is, by definition, a threat to any ratified law.

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Okaaaay.

j brown's body said:

...Historically, the wrong kind of speech could land you in jail. Laws criminalizing blasphemy, government criticism, tepid sexual content and other speech viewed to be bad or harmful were commonplace at the country’s founding. In the 1770s, the Continental Congress outlawed theater because it was viewed as too culturally English. In the 1790s, Congress, controlled by one party, passed a law making it easier to imprison political opponents. Later, Southern states outlawed abolitionist speech. And throughout our history, the government prosecuted undesirable political minorities. This is not a history we should wish to resurrect."

Link

We really shouldn't have to live as they did over 200 years ago.

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Trump has already announced that he intends to arrest his critics.
That's basically what was known as "Lèse-majesté.



Lèse-majesté or lese-majesty (UK: /ˌliːz ˈmædʒɪsti/ leez MAJ-ist-ee, US: /ˌleɪz -/ layz -⁠)[1][2][3] is an offence or defamation against the dignity of a ruling head of state (traditionally a monarch but now more often a president) or of the state itself. The English name for this crime is a modernised borrowing from the medieval French, where the phrase meant 'a crime against the Crown'. In classical Latin, laesa māiestās meant 'hurt/violated majesty' or 'injured sovereignty' (originally with reference to the majesty of the sovereign people, in post-classical Latin also of the monarch).

United States​

The Sedition Act, enacted in 1798, forbade criticism of the President of the United States or of the Federal government; the law was denounced as unconstitutional by its opponents, but was never brought before the Supreme Court. It expired in 1801.[112] Modern jurisprudence concerning the First Amendment to the United States Constitution would make such laws unconstitutional.[112]

------Hmmmm, I guess not anymore.

j brown's body said:

j brown's body said:

", Judge John Bush said that judges should discern the original understanding of free speech in “linguistical meaning” and “evidence of how Americans ordered their lives” in the 1790s.

...Recently, Judge Kevin Newsom of the Court of Appeals for the 11th Circuit said it would be “terrific” if courts started asking “what ‘the freedom of speech’ meant to the founders.”

...During the founding era, the right to free speech was understood much more narrowly than it is today. Something as simple as swearing or voicing unpopular political opinions might land you on the wrong side of the law. If rules from the 1790s were enforced today, citizens could be jailed for criticizing politicians, public figures could freely use defamation law to punish critics and schoolchildren would have few if any free speech rights.

...Historically, the wrong kind of speech could land you in jail. Laws criminalizing blasphemy, government criticism, tepid sexual content and other speech viewed to be bad or harmful were commonplace at the country’s founding. In the 1770s, the Continental Congress outlawed theater because it was viewed as too culturally English. In the 1790s, Congress, controlled by one party, passed a law making it easier to imprison political opponents. Later, Southern states outlawed abolitionist speech. And throughout our history, the government prosecuted undesirable political minorities. This is not a history we should wish to resurrect."

Link

We really shouldn't have to live as they did over 200 years ago.

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Of course Textualism, which has Originalism as a subset, isn’t the equivalent of “live as they did over 20” years ago.” There is not a mandate for a return to dirt roads, travel by horse, colonial style homes with light by lamps burning whale fat.

Your terse comment, however, does speak directly to a fundamental importance of the American experience of constitutional government, that of placing laws into writing.

Of course, some inherent truisms of placing laws into writing, such as the U.S. Constitution,
are A.) to communicate B.) rights .C) obligations D.) prohibitions E.) limitations F.) powers G.) procedures H.) dates and times, to only name some but not all truisms.

This requires the written law to have a meaning or some meaning at the moment the law is written. A law without any discernible meaning is useless, as useful as a blank page. The written law, resting upon the notion the law communicates something, is done to inform the reader, such as a political community, nation, state, etcetera, of what the law says, protects, deprives, forbids. allows, constrains, procedures, etcetera, so that the critizens, people, institutions, entities. of that community, state, nation, can conform their behaviors commensurately to what the written law says.

Necessarily then, a feature of written law is that the law of yesterday and its meaning is binding upon the people born tomorrow and not yet alive when the law came into existence.

Textualism/Originalism seeks to discern the reasonable public meaning of the Constitution at or near the time of creation/ratification, thereby adhering to the features of written law elucidated above.

The recourse, however, available to future generations seeking to cast off the yoke of yesteryears’ laws in the amendment process.

Regarding the article concerning free speech, it’s a myopic survey, that elides in many instances the wider notion of free speech that is more parallel to today as reflected by those denouncing some of the examples cited by the author of the article.

j brown's body said:

So I have offered a very real example of the threat originalism is to fee speech, not an empty cliche like this.

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Huh? You cited a link to an article I cannot read in its entirety but between what you posted here and what I was able to read at the site, there isn’t a “very real example of the threat originalism is to fee speech.”

Rather, there’s the author’s claim, “During the founding era, the right to free speech was understood much more narrowly than it is today.” This statement is supported by more statements of, “simple as swearing or voicing unpopular political opinions might land you on the wrong side of the law. If rules from the 1790s were enforced today, citizens could be jailed for criticizing politicians, public figures could freely use defamation law to punish critics and schoolchildren would have few if any free speech rights.” Conspicuously absent is the supporting evidence, the factual support for those statements.
Yes, there’s the Alien and Sedition Act passed under the Adams Administration and such a law was publicly derided and denounced by some as unconstitutional. Indeed Jefferson and Madison wrote the Virginia and Kentucky Compact Resolutions denouncing the law.

The statement, “This is not a history we should wish to resurrect,” is more compelling with supporting facts, including those facts advocating for a broader understanding of free speech, the Virginia and Kentucky Compact Resolutions constituting as such facts.