Thursday, April 19, 2012
Ronald K. L. Collins, University of Washington School of Law, has published The Speech & Press Clauses of the First Amendment at 29 Delaware Lawyer 8 (Winter 2011/2012). Here is the abstract.
Examining the history leading to the adoption of the First Amendment sheds light on the speech and press clauses.
Interpreting the First Amendment to protect the people against abridgments of free speech and press by all branches of the federal government as well as by state and local government -- despite the initial words, "Congress shall make no law" -- is supported by the history leading to its adoption. Neither Anti-federalists nor Federalists believed that the new Constitution gave the Executive or the Judiciary the power to abridge speech. Drafters saw the Executive's and Judiciary's roles as enforcing and interpreting the laws -- and they could not enforce or interpret a law abridging freedom of speech or press if Congress could not pass one.
Evidence is scant as to why the drafters chose to use "abridging" rather than "prohibiting," "denying," or another term. A Madisonian reading equates "abridging" with government efforts to "cut short" messages; government-ordered brevity should not be traded for the fullness of freedom.
Download the article from SSRN at the link.