On the Meaning of the First Amendment: Absolutes in the Balance

Abstract

IN A RECENT article, Mr. Laurent Frantz criticizes the Supreme Court's of interests approach in free speech cases. In the course of his argument, he also lampoons the absolutist approach of the dissenters, and chides its chief spokesman for putting his argument in the form that the first amendment 'means what it says.' 2 Yet in criticizing the Court, Mr. Frantz himself rests largely on what he seems to assume is a clear meaning in the constitutional text-and its history?.3 In support of the Court's balancing position, I suggest that the language of the first amendment is highly ambiguous, and that this ambiguity is at best compounded by history. Professor Chafee put it in a thimble: The truth is, I think, that the framers had no very clear idea as to what they meant by 'the of speech or of the press.' 4 Indeed, perhaps it is not going too far to suggest that there is no more equivocal word in the English language than freedom. What Lincoln said of liberty is relevant here: The world has never had a good definition of [it]. He also pointed out that what is for the lion is death for the lamb. In short, however clear the thou-shalt-not part of the amendment may be, its chain of meaning cannot transcend the fogginess of its weakest link. Surely the framers would have communicated more clearly if they had omitted the weasel-word, and provided simply, Congress shall pass no law (or restricting) speech. This suggests, of course, that they used the word freedom as a limiting or qualifying, not an enlarging, term--a reference presumably to the narrow conception of free utterance that prevailed in the late eighteenth century. Finally, it is noteworthy that even so stout a libertarian as Alexander Meiklejohn has chided those who insist that the words abridging the of speech or of the press are plain words, easily understood.'5