When the Constitution was adopted, a few states hesitated to ratify it unless it included a Bill of Rights. Thomas Jefferson, for instance, believed it was a mistake not to add a Bill of Rights from the start. Overall, those wary of a powerful national government felt that a Bill of Rights was important. In the end, those who felt a Bill of Rights was needed prevailed.
Justice Story, in his Commentaries, put it this way:
It has been already stated, that many objections were taken to the constitution, not only on account of its actual provisions, but also on account of its deficiencies and omissions. Among the latter, none were proclaimed with more zeal, and pressed with more effect, than the want of a bill of rights. This, it was said, was a fatal defect; and sufficient of itself to bring on the ruin of the republic.2 To this objection several answers were given; first, that the constitution did in fact contain many provisions in the nature of a bill of rights, if the whole constitution was not in fact a bill of rights; secondly, that a bill of rights was in its nature more adapted to a monarchy, than to a government, professedly founded upon the will of the people, and executed by their immediate representatives and agents; and, thirdly, that a formal bill of rights, beyond what was contained in it, was wholly unnecessary, and might even be dangerous.[1]
Jefferson was serving as ambassador to France when the Constitution was drafted and debated, but the language of the First Amendment can be traced directly to the Virginia Statute for Religious Freedom, which Jefferson wrote. James Madison drafted an initial version of the speech and press clauses, which was introduced in the House of Representatives on June 8, 1789. After some rewriting and expansion by the House and Senate, the Amendment was adopted with almost no opposition.
The First Amendment to the Constitution provides that “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 amendment protects five freedoms: religion, speech, the press, public assembly, and petitioning the government for a redress of grievances. These five freedoms form the foundation of our Constitutional system of government. Although religion is first among the five, I chose to start this series of blogs with freedom of speech.
Throughout most of our nation’s history, the First Amendment has been a cornerstone of American democracy, cherished for protecting our fundamental freedoms. Recently, however, the intellectual landscape has shifted. The rise of a nearly unregulated Internet and media space, the challenges traditional media giants face in maintaining control, and the changing influence of political elites have sparked new debates about the First Amendment. Many voices are now calling for increased regulation. As I’ve discussed before in these blogs, the First Amendment has been interpreted to include the right of corporations and others to make campaign contributions, a decision many believe was mistaken.[2] Across the political spectrum, many people believe this was a significant mistake and that it’s time to revisit what free speech really means.
The Colonial and European Experience
It is sometimes difficult for Americans to remember that freedom of speech was not universal, or even common, throughout most of human history. The Founders, for example, knew that seditious libel (criticizing the government) was a crime in England. Generally speaking, the king, and today the government, was beyond public criticism, and one had to be careful about what was said or written in public. The American colonists were familiar with these laws, and many came to America to escape them. In some respects, the First Amendment was intended to eliminate seditious libel from the American continent.
American media companies also enjoyed a kind of press freedom unknown in Europe when America was formed. Generally speaking, it required a license from the government to run a newspaper. These licenses were designed to prevent criticism of the ruling party, usually a king. Another reason for the First Amendment was to prohibit this kind of governmental restriction on the press.
In Whitney v. California, Justice Brandeis eloquently defended the reasons for the First Amendment:
Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.[3]
In this passage, Justice Brandeis outlines the reasons why the founders felt that the amendment was necessary:
- To create the conditions in which human beings can flourish.
- To create a society based on discussion and dialogue rather than brute force.
- To protect fundamental human freedoms, even though contract theory gave the state certain powers.
- To create a public forum where political truth could be discovered and acted upon by those in authority.
- To guarantee the right of like-minded people to gather together without interference by the state.
- To create a stable government based on the rights of those who feel wronged to make public their disagreements with prevailing wisdom.
- To protect minorities against the tyranny of majority views, thus allowing unpopular views that may ultimately be proven true to have a place in the public forum.
Justice Brandeis’ list of reasons for the amendment shows that the amendment’s main purpose was to safeguard certain basic human freedoms, including freedom of political speech. However, the Court has also protected other types of speech. Not everyone agrees with this view. For example, Judge Robert Bork believed only political speech deserved First Amendment protection, and he felt the court shouldn’t expand that protection beyond the right to oppose the government and other parties’ political views.[4]
Limits on the Right
From the start, people understood that freedom of Speech was important. However, they also knew it would probably have limits because of real-world practicalities. As Justice Story put it,
The next clause of the amendment respects the liberty of the press. “Congress shall make no law abridging the freedom of speech, or of the press.” That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. This would be to allow to every citizen a right to destroy, at his pleasure, the reputation, the peace, the property, and even the personal safety of every other citizen. A man might, out of mere malice and revenge, accuse another of the most infamous crimes; might excite against him the indignation of all his fellow citizens by the most atrocious calumnies; might disturb, nay, overturn all his domestic peace, and embitter his parental affections; might inflict the most distressing punishments upon the weak, the timid, and the innocent; might prejudice all a man’s civil, and political, and private rights; and might stir up sedition, rebellion, and treason even against the government itself, in the wantonness of his passions, or the corruption of his heart. Civil society could not go on under such circumstances. Men would then be obliged to resort to private vengeance, to make up for the deficiencies of the law; and assassinations, and savage cruelties, would be perpetrated with all the frequency belonging to barbarous and brutal communities. It is plum, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. It is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends. And with this reasonable limitation it is not only right in itself, but it is an inestimable privilege in a free government. Without such a limitation, it might become the scourge of the republic, first denouncing the principles of liberty, and then, by rendering the most virtuous patriots odious through the terrors of the press, introducing despotism in its worst form.[5]
Story understands that freedom of speech cannot be absolute and does not give people the right to use public speech to defame character, exact private vengeance, or undermine another person’s life. Consistent with those who believe the original intent was limited, Story limits the right to express one’s opinion on matters of public importance without prior restraint, so long as it does not injure another person’s reputation. It does not give the right to disturb the peace or subvert good government. It is a liberty to publish what is true in a way that does not injure other people. Nevertheless, the Court has granted great leeway in interpreting the text and, in many ways, has expanded the right beyond the mirror, protecting political speech.
Justice Story ends his analysis with a warning that is important in this particular moment in history: without limitations on this right that prevent liable, deliberate statements of fact and the undermining of the constitutional form of government we have, the amendment becomes a tool for those who would incite violence or overthrow our freedoms. One can make a fairly good case that we are at a moment in which the enemies of freedom are using the Constitution for a purpose it never had.
Conclusion
While the idea of absolute free speech can be quite appealing, it’s important to recognize that in reality, some boundaries are necessary to prevent harm to others. Finding a balance is tricky, especially when considering whether restrictions should only apply to political speech. For example, it’s often challenging to draw the line between political expression and artistic expression. Even if placing a Cross in a glass of urine seems offensive and culturally provocative, an artist might argue that it’s a way to comment on the influence of Christian faith on American society and politics. This example shows how a matter of free expression can sometimes be framed as a political speech issue. That’s why the Supreme Court has interpreted the First Amendment more broadly, protecting not just political speech but a wide range of expressive activities.[6]
Despite the need for protections against the misuse of the First Amendment, it’s important to recognize its centrality in our political system. Current attempts to limit freedom of speech and censor views that dominant groups deem inadequate directly threaten our democratic system. It should be obvious, but those in power decide when to use the courts to limit speech, and they use them to protect their own positions and authority.
On the other side of the equation, it has long been recognized that the First Amendment should not be used as a cover for brutality, slander, and the destruction of people with whom you disagree, among other aspects of what I have called “politics as war.” The public arena can become a place of unmitigated, unrestrained speech with very little rational content. One need only look at the comment sections of many social media sites to see how often responses are nothing more than cursing or screaming in print. Our constitutional system was not designed to protect the public from their own base instincts.
Copyright 2026, G. Christopher Scruggs, All Rights Reserved
1 Story, Commentaries on the Constitution of the U.S. (1833), Sec. 1852, 830 found at Story: Commentaries on the Constitution of the U.S. (1833) Page 837 © Copyright 2003, 2005 Lonang Institute (downloaded July 27, 2026), hereafter “Story.” I have not modernized Story’s language, which can be fairly cumbersome and difficult to understand. He wrote in another era.
[2] Citizens United v. Federal Election Commission, 558 US 310 (2010).
[3] Whitney v. California, 274 US 357 (1927), 375-376 (Justice Brandeis concurring).
[4] Robert Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J.1, 28 (1971).
[5] Story, Section 1874, at 837.
[6] Erin Chemerinsky, Constitutional Law: Principles and Policies 3rd ed (New York, NY: Aspen Publishers, 2006), 927. This book has been an important source on this issue and will remain so in future blogs.











