Over at the Volokh Conspiracy, Akhil Amar has a long post on freedom of speech. Akhil takes issue with the post by Richard Posner that had criticized Scalia and Garner for not following the narrow Blackstonian understanding of freedom of the press as the original meaning. Readers will remember that I had criticized Posner on the same grounds. As I did, Akhil relies in part on Eugene Volokh’s scholarship on the original meaning of the First Amendment.
Akhil raises a separate issue, which he and others have discussed before: While it is possible that freedom of the press was intended to restrain a licensing regime regarding the press, it seems extremely unlikely that freedom of speech was intended to restrain a licensing regime for speech. Back in England, the King did require preapproval of publications. Requiring preapproval of all speech seems so impractical as to be inconceivable. Akhil therefore seeks an alternative basis for freedom of speech in the freedom of speech of legislators, which is definitely a possibility.
I will say, though, that the rejection of the licensing or preapproval interpretation of freedom of speech is a little fast. It is certainly true that one could not imagine licensing for all speech. But one could certainly imagine a government licensing public speeches or speeches to more than a certain number of people.
I don’t mean to endorse this interpretation. But I am not sure that it is mistaken either.