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Amdt1.3.1 Historical Background of Free Speech Clause

First Amendment:

Congress shall make no law respecting an 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.

The Free Speech Clause went through several iterations before it was adopted as part of the First Amendment. James Madison drafted an initial version of the speech and press clauses that was introduced in the House of Representatives on June 8, 1789. Madison’s draft provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” 1 The House of Representatives special committee rewrote Madison’s language to make the speech and press clauses read: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.” 2 The Senate subsequently rewrote the speech and press clauses to read: “That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.” 3 Later, the Senate combined the religion clauses and the speech and press clauses4 and the House and Senate agreed to final language in conference.

There was relatively little debate over the speech and press clauses in the House, and there is no record of debate over the clauses in the Senate.5 During debate over the clauses, Madison warned against the dangers that would arise “from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.” 6 The general statement of these “simple” principles, however, gave rise to controversy when applied to specific government actions.7

The Sedition Act of 1798 sparked one such controversy that “crystallized a national awareness of the central meaning of the First Amendment.” 8 The law punished anyone who would “write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame . . . or to bring them . . . into contempt or disrepute.” 9 While Thomas Jefferson and Madison condemned the act as unconstitutional, the Adams Administration used it to prosecute its political opponents.10 Although the Supreme Court never ruled the Sedition Act unconstitutional prior to its expiration in 1801, the Court later recognized “a broad consensus” from the political and judicial branches that the act was unconstitutional.11

Annals of Cong. 434 (1789). Madison had also proposed language limiting the power of the states in a number of respects, including a guarantee of freedom of the press. Id. at 435. Although passed by the House, the amendment was defeated by the Senate. back
Id. at 731. back
The Bill of Rights: A Documentary History 1148–49 (B. Schwartz ed. 1971). back
Id. at 1153. back
The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals of Cong. 731–49 (Aug. 15, 1789). back
Id. at 738. back
For example, Madison refused to concur officially in President George Washington’s condemnation of “[c]ertain self-created societies” —political clubs supporting the French Revolution—and he successfully deflected Federalist interest in censuring such societies. I. Brant, James Madison: Father of the Constitution 1787–1800, at 416–20 (1950). “If we advert to the nature of republican government,” Madison told the House, “we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 Annals of Cong. 934 (1794). However, while a member of his county’s committee on public safety, Madison had promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers of James Madison 147, 161–62, 190–92 (W. Hutchinson & W. Rachal, eds., 1962). Writing to Madison in 1788, Jefferson stated: “A declaration that the Federal Government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 Papers of Thomas Jefferson 442 (J. Boyd ed., 1955). A year later, Jefferson suggested to Madison that the free speech-free press clause might read something like: “The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 Papers, supra, at 367. back
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964). back
1 Stat. 596 (1798) back
See J. Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties 159 et seq. (1956). back
N.Y. Times Co., 376 U.S. at 276. back