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Thursday, December 23, 2010

Abridging the Freedom of Speech

First amendment absolutists like to cite the text of that amendment and then smugly declare the case decided, for instance:

"Congress shall make no law abridging the freedom of speech, or of the press. Now get over it."

But have these people thought about what "abridge" means?
"abridge: to reduce in scope, extent, etc.; shorten"

So, this amendment does not in the least say that the freedom of speech is absolute; instead, it says that, whatever that freedom is, Congress may not reduce it.

And if you read a little history it is clear that no Founder thought that right was anything like absolute. Not a single one of them thought that, for instance, laws banning pornography were unconstitutional.

It is one thing to argue that they were wrong, and that the freedom of speech should be considered absolute. It is quite another to make the blatantly false historical claim that the Founders did think it was absolute.

4 comments:

  1. Not to be a stick in the mud here...but aren't speech-limiting laws like bans on pornography and whatnot instituted at the state-level?

    I know we live in the era of (partial) incorporation, but I don't think (at least at the time) they intended the Bill of Rights to apply to individual states. In fact, I get the impression that the Constitution probably wouldn't have even been ratified under such an agreement.

    In fact, I'm not aware (specifically) of any of the founders being particularly for or against restrictions on speech, firearms, etc. at the state level. In fact, I believe that's at least part of the reason that individual cities, counties, and states can not only regulate but ban particular makes and models of firearms for instance - without much of a judicial kerfuffle.

    Then again, I'm certainly not a student of history. Maybe I'm under the wrong impression.

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  2. Well, Ryan, what you say is generally accurate but... What does it have to do with my post? You're talking about federalism, while I'm talking about first-amendment absolutism. Orthogonal issues, I think.

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  3. Well...it seemed that at least part of your justification (for such freedom not being absolute) was that many of the founders wouldn't have issue with, say, laws banning pornography. And I believe that largely to be true - so I believe it's an issue of context.

    In the context of the federal government, one could certainly argue that such freedoms are/were absolute. That is to say - the federal government would not be able to restrict free speech in any sense of the word.

    However, if we are speaking in more general terms (outside of the context of federal government) then I think your general assertions are correct. My worry - or confusion - was that you were interpreting many of the founders' more passive stances on state/local regulation as justification for a more ambiguous interpretation of what should (in theory) be an "absolute" protection of speech...at least at the federal level.

    But, upon your response, I'm guessing I was just more generally confused by one part of your argument. In either case, I think you're generally correct.

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  4. "That is to say - the federal government would not be able to restrict free speech in any sense of the word."

    No, that's false -- the First Amendment certainly did not mean that to any of the Founders.

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