Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
-U.S. Constitution, Amendment I
No law means NO LAW, and I can't seem to figure out what else it could possibly mean.-Saige
Justice Hugo Black
was quite right to say, years ago, that "no law" means "no law," Smith v. California,
361 U.S .
147, 157 (1959) (BLACK, J., concurring) ("I read 'no law . . . abridging' to mean no law abridging") . However, this is not a particularly useful rule of construction
. There is not really any debate over whether " no law abridging
" means "no law abridging," any more than over whether "no law respecting an establishment of religion
" means "no law respecting an establishment of religion." Out of all of the words in the First Amendment
, "no law" would seem to be the most easily construed.
problem, around which debate generally centres, is what "the freedom of speech
" means. Indeed, Justice Black's concurrence
essentially admits this in the very same paragraph as his famous maxim
The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly "beyond the reach" of federal power to abridge. No other provision of the Constitution purports to dilute the scope of these unequivocal commands of the First Amendment. Consequently, I do not believe that any federal agencies, including Congress and this Court, have power or authority to subordinate speech and press to what they think are " more important interests." The contrary notion is, in my judgment, court-made not Constitution-made.
(footnotes omitted). Thus, the real gravamen
of Justice Black's statement is that the "freedom of speech" should be given the broadest possible construction, to encompass all speech and everything published by the press.
, and not the meaning of "no law," is the source of controversy in virtually all First Amendment cases. Some have argued for a highly restrictive construction of the "freedom of speech." For example, in Schenck v. U.S.
, 249 U.S. 47 (1919), Justice Oliver Wendell Holmes
, writing for a unanimous court, held that the "freedom of speech" ended where "the words used [were] used in such circumstances and [were] of such a nature as to create a clear and present danger
that they [would] bring about the substantive evils that Congress [had] a right to prevent." Schenck
, 249 U.S., at 52.
While "clear and present danger" may seem highly protective of speech, it did not go far. In Schenck
, the Court held that Congress had "a right to prevent" resistance to the World War I draft
, a draft that was necessary due to the immense unpopularity of that war. Since Congress had a right to prevent draft resistance, it followed that Schenck could constitutionally be prosecute
d for publishing and distributing his pamphlets, which reproduced § 1 of the Thirteenth Amendment
and urged conscript
s to "Assert Your Rights" by lawful means. After all, reasoned Justice Holmes, "[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force." Id.
. Of course, applied as it was to a pamphlet that asserted that an act of Congress
and encouraged conscripts to vindicate their constitutional rights by lawful means, it seems that Holmes wouldn't even protect the speech of someone who quietly stands outside the theatre telling people not to waste their money on Bringing Down the House
This basic idea, that short of prior restraint
s could essentially outlaw
any speech they found objectionable
without "abridging the freedom of speech," persisted through the 1950s
. In 1951, in Dennis v. United States
, the Court stated:
[The First] Amendment requires that one be permitted to believe what he will. It requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom. But we further suggested that neither Justice Holmes nor Justice Brandeis ever envisioned that a shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case. Speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature. To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative.
Dennis v. United States, 341 U.S. 494, at 508 (1951)(internal quotation marks and citations omitted). All things being relative, the Court held that imprisoning leaders of the Communist Party of the United States
for abstract advocacy of the propriety of the overthrow of the U.S. government at some undetermined later date did not "abridge[ ] the freedom of speech."
This construction of the "freedom of speech," which rendered the Free Speech Clause
approximately as follows:
Congress shall make no law abridging the freedom to utter such speech as Congress deems appropriate,"
only began to give way to the freedom of speech currently known (or, perhaps, previously known
) in the U.S. in the 1960s.
The foregoing is not, and is not intended to be, an exhaustive history of Free Speech Clause jurisprudence
. That has already taken up reams of paper elsewhere. Rather, I seek to illustrate that the problem of construing the First Amendment, and the controversies arising from it, cannot be resolved by tautology
. "No law" means "no law." "Establishment of religion" means "establishment of religion." True enough, but does this give us any useful standard for determining when a law "abridge[s] the freedom of speech" or respect[s] an establishment of religion?"
Every rule of law
, whether statutory, constitutional, or judicially created, has two parts - a factual predicate
and a legal consequence
. These come together to create an IF-THEN argument
IF Law = abridge(Freedom of Speech) THEN Law = unconstitutional
IF Law = respect(Establishment of Religion) THEN Law = unconstitutional
Here, the legal consequence - invalidity of a law ("no law") - comes before the factual predicate. As with any judgment about the constitutionality of state action
, the legal consequence is the easy part. If it's unconstitutional, it's void. "No law" means "No law." The hard part is, and always has been, ascertaining what facts fulfill the factual predicate.