The Nixon DOJ began with an extreme legal position: that newspapers couldn’t quote from classified documents simply because they were classified.
Associate Justice Hugo Black (1886-1971) styled himself a First Amendment absolutist. While predating modern debates over textualism and originalism, Black articulated his position on grounds consistent both with textual originalism and original intent. In a dissenting opinion in 1960, for example, Black wrote judges should “enforce the First Amendment to the full extent of its express and unequivocal terms.” So, too, original intent. He explained in an article in NYU Law Review, “[n]othing that I have read in the Congressional debates on the Bill of Rights indicates that . . . the First Amendment contained any qualifications.”
Black’s statement of his reading of First Amendment speech and press guarantees in a dissent in Mishkin v. New York is instructive: “I think the Founders of our Nation in adopting the First Amendment meant precisely that the Federal Government should pass ‘no law’ regulating speech and press . . . .”
Black famously opposed the Court’s application of balancing tests—such as strict scrutiny, or the clear-and-present-danger test—to determine whether the government could suppress speech.
Black’s position that a straight-forward reading—an honest reading—of the First Amendment facially requires an absolute reading of the protections is common now, if not conventional wisdom. In a passing comment in a book published last year (dedicated to a different topic in constitutional thought) a political scientist echoed Black’s belief as matter-of-factly obvious:
[T]he First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press,” yet courts have approved restrictions in the name of libel, obscenity, and other restraints on speech and publications. These restraints . . . are not provided for in the Constitution.
The thing is, Black’s ostensible textualism does not read the First Amendment correctly. And this actually is easy to show.
Let’s place the actual text of the First Amendment parallel to Black’s rendition of the First Amendment in his Mishkin dissent.
The First Amendment itself states: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”
Now Black’s construction from Mishkin, which I’ve altered slightly to bring the parallel into greater focus: Congress shall make no law . . . regulating speech, or the press.
I’m fine with treating “regulating” as a synonym of “abridging.” That’s not the critical change. And, indeed, the way Black renders the First Amendment does indeed express its requirements as an absolute. The First Amendment would be absolute if it stated “Congress shall make no law . . . abridging speech or press.”
But the First Amendment does not state Congress shall make no law abridging speech or press. It states Congress shall make no law abridging the freedom of speech, or of the press.
Black’s (mis)reading of the First Amendment violates a fundamental principle of legal interpretation: Every word of a legal text must be given effect, if possible. That is, an interpretation of a legal text that gives no effect to one or more words in the text must be rejected, unless it is impossible to read the text otherwise.
Black’s reading of the First Amendment gives no effect to the phrase, “the freedom of.” Indeed, he drops the phrase entirely from the rendition he provides in his Mishkin dissent. The words have no meaning in his reading of the Amendment.
The words, however, are not superfluous; it is straightforward to give effect to the phrase Black ignores. Doing so reads the First Amendment consistently with at least one major line of Supreme Court interpretation.
The imperative in the First Amendment that Congress shall make no law abridging the freedom of speech means there is a domain of speech that cannot be regulated. This category, however, is not identical with all speech. Rather, the First Amendment textually reflects the then existing legal partition of speech into a category of speech that is free and into a complementary category of speech that is not free.
The First Amendment forbids Congress from narrowing the set of speech that came within the then existing domain of “freedom of speech.” Stating that, however, in no wise implies that speech that fell within the then existing complementary set of legally proscribable speech—presumably defined at the time by common law—could not be abridged.
What is speech included in this complementary set of abridgeable speech? The Supreme Court explained in the 1942 case of Chaplinksy v. New Hampshire (an opinion Black joined):
There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.
One need not think the Court entirely correct regarding the list of types of unprotected speech to recognize the correctness of its methodology. The question is what fell within the domain of proscribable speech at the time the First Amendment was drafted. Indeed, going beyond Chaplinsky’s categorical approach, it’s possible a discerning textualist might even be able to deduce a balancing test to represent the underlying common law partition of speech at the time of the drafting and ratification of the First Amendment.
Irrespective, Justice Black’s “absolutist” reading of the First Amendment, while celebrated, is not consistent with the actual text of the First Amendment. And it’s not a particularly close call.