United States Constitution

Compared to other clauses and amendments, the historical evidence of the Founder’s original intent behind this clause is scarce – there was little debate about this clause, and no records were kept during the first Senate which approved it. To further add to the confusion regarding original intent, several of the founders were involved in the passage of the Alien and Sedition Acts of 1798. These laws prohibited criticism of the government, and were used on political opponents of President John Adams until Thomas Jefferson was elected president and repealed them. Despite never being ruled upon by the Supreme Court, Justice Brennan would later describe in the majority opinion for New York Times Co. v. Sullivan that the argument against the constitutionality of the Acts ”[H]as carried the day in the court of history.” The ambiguity regarding the original intent of this clause has led to the Court developing the law relating to free speech with less of a focus on original intent compared to other parts of the amendment. Several schools of thought have developed regarding the rationale behind protecting freedom of speech. Unrestricted communication, particularly political speech, is essential to a working democracy and self-governance. Protecting political speech allows citizens to keep their government in check and effectively inform themselves as voters. Free speech also allows for discovery of truth through the “marketplace of ideas”. If different ideas can be shared freely and compete against each other, the best ideas can rise to the top. Additionally, free speech is considered an essential part of humanity and personhood. Humans have a natural need to express themselves, and free expression allows people and society to develop on an important personal level regardless of the effect it has on others. Lastly, protecting free speech promotes tolerance. By protecting the expression of unpopular ideas, society becomes more tolerant and open to discussion as a whole.