“Congress shall make no law … abridging freedom of speech, or of the press … ”
— Amendment I United States Constitution
The First Amendment to the United States Constitution got off to a rocky start. The same Congress that proposed the First Amendment adopted the Alien and Seditions Acts of 1798, which made it a crime to write or speak ill of the president or members of Congress. The president, John Adams, and a majority of the members of Congress, were Federalists.
However, it did not turn out well for the Federalists. The American people were so incensed by prosecutions under the Act, they voted the Federalists out of office, and elected Republican Thomas Jefferson President, who pardoned all those convicted under the Act, which was then repealed.
So, it is not the original intent of the 1798 Congress we look to in understanding the meaning and scope of the First Amendment protections of speech and the press, but the history and importance of having freedom of speech and of the press in our lives.
The First Amendment grew dramatically in stature and scope with the adoption of the Fourteenth Amendment at the end of the Civil War. Whereas the First Amendment as adopted only applied to the federal government, specifically the Congress, the Fourteenth Amendment came to be read as prohibiting state and local governments from interfering with freedom of speech and of the press.
However, not all speech is protected under the First Amendment. As United States Supreme Court Justice Oliver Wendell Holmes, Jr. wrote, it “would not protect a man falsely shouting fire in a theater and causing a panic … ”
We look to our courts to determine what speech is protected under the First Amendment, and its analogous provision in our Hawaii Constitution. There is little debate that its primary purpose is to protect speech critical of government and government officials, essential in preserving a healthy democracy.
When our federal and state constitutions were written, they provided for three branches of government (the executive, legislative and judicial), distributed powers among them, and set forth checks and balances between these branches of government. This was done to avoid the centralization and abuse of power.
The press has evolved under the First Amendment as a fourth branch, providing a check on the other three. Without the freedom of the press, it is difficult to imagine the criminal activity and abuse of power of “Watergate” being discovered during the Nixon administration, or the truth about the Vietnam War set forth in the “Pentagon Papers,” or the extent of Russia’s interference in United States elections.
Freedom of speech is essential in the pursuit of truth. As Justice Holmes wrote, “the best test of truth is the power of thought to get itself accepted in the competition of the market.” Speech can often be false, uncomfortable and even painful. Some of it is not protected, as defamation and threats; but the answer to protected speech is not censorship, but more speech.
Freedom of speech not only serves our democracy and the pursuit of truth, it also allows us to express ourselves in manners of our own choosing. As the great civil rights attorney and United States Supreme Court Justice Thurgood Marshall wrote, “The First Amendment serves not only the needs of the polity but also those of the human spirit – a spirit that demands self-expression.”
So today, on this Law Day, let us appreciate the First Amendment, even though you may not appreciate some of the speech it protects. Remember it protects yours.
