Private: Flawed Thinking on Free Expression: How ‘Originalism’ Undercuts the First Amendment

By Kenneth Shear. Mr. Shear was a civil rights litigator in Seattle, Wash., for many years. More recently, he has consulted on electronic discovery and information technologies issues and has published several articles in this area. Earlier, he served as a law clerk on the U.S. Court of Appeals for the Eighth Circuit.

Unoriginal Misunderstanding has two main points: to reclaim some lost historical evidence of deep American libertarian traditions of free expression, and to expose some deep flaws in the originalist approach to the First Amendment. (An online version of Unoriginal Misunderstanding, a new monograph, is available free here.) It shows how a promise of broad press freedom was instrumental in the founding of the Republic. A wealth of documentary evidence supporting this conclusion is reviewed, most of which has been overlooked in previous historical accounts, especially the work of Leonard Levy whose work is regarded by many as the leading scholarship in this area. Such omissions in leading historical works show how uncertain an endeavor it is for judges to declare from the bench what the "original meaning" of press freedom was several hundred years ago.

Ironically, the originalist approach is most often used to argue for a retreat from the deep American libertarian traditions that are embodied in the First Amendment. What we have actually inherited from the founders is a broadly worded promise of press freedom that reflected liberal views in much of the political writing of the time. Our responsibility is to preserve the guarantee and pass it on to those who follow us, keeping faith with the letter and the spirit of the Bill of Rights. This does not mean adopting some uncertain speculation about how narrowly people in the past may have thought, but rather accepting the responsibility to fulfill the broad promise that remains a part of our fundamental law in the present day.

The conclusion of Unoriginal Misunderstanding focuses on Justice Scalia's attacks on modern First Amendment jurisprudence generally, and specifically New York Times v. Sullivan, as inconsistent with what Scalia deems to be the "original meaning" of the First Amendment. Alarmingly, Scalia has recently dredged up a long discredited state law case (Commonwealth v. Blanding) that announced severe restrictions on press freedom in 1825, a generation after the adoption of the Bill of Rights, during an era when American courts were particularly unreceptive to civil liberties. Such views are radically at odds with American attitudes at the time the First Amendment was adopted and with longstanding American libertarian traditions.

Originalism misuses history by allowing judges to undertake the Orwellian exercise of declaring an official version of history from the bench, rather than treating history as something we can learn from. Yet an appeal to history can play a crucial role in First Amendment cases by drawing support for today's decisions from their roots in the past. Justices Holmes and Brandeis appealed to views of the founders in their great First Amendment opinions and more recently Justice Brennan and other judicial champions of press freedom have claimed the warrant of America's deepest traditions. Unoriginal Misunderstanding shows that these views have more ample historical support than has been previously been recognized.

History is not one-sided, though. In early American history there indeed were some who urged that press freedom should not protect writings considered harmful by the authorities. Unoriginal Misunderstanding suggests that such illiberal views were advanced and rejected in the ratification controversy and adoption of the First Amendment. But this is a matter of interpretation of history, not a certainty. We only know the past through a lens of incomplete knowledge available today, with the focus adjusted by our current predispositions and perspectives. This applies to what I've written as well as what originalists claim.

The difference is, originalists don't talk about the lessons to be learned from history, but attempt to declare what the meaning of the Constitution was two centuries ago. We can draw important lessons from history without claiming to know the past with more certainty than is actually possible. History can illuminate American traditions of press freedom, and the political and legal context in which First Amendment guarantees were added to the Constitution. It can show how courts considering the press freedom guarantee over the years have in some cases remained faithful to it and in other cases misinterpreted, compromised or betrayed it. But we can do no better than to interpret the past from the point of view of the present, with the interpretation subject to change when new evidence is uncovered or when new insights yield better understanding of what is already known. Hopefully, Unoriginal Misunderstanding contributes something of value to this effort.

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Constitutional Interpretation, First Amendment