Ashutosh Avinash Bhagwat, ‘Posner, Blackstone, and Prior Restraints on Speech’

Judge Richard Posner recently asserted that the original understanding of the free speech clause of the First Amendment was to prohibit “censorship” – meaning prior restraints – but not subsequent punishments. Posner was following in the footsteps of many other eminent jurists including Justice Holmes, Joseph Story, James Wilson, and ultimately William Blackstone’s Commentaries on the Laws of England.

The problem is, this claim is simply wrong. Firstly, it misquotes Blackstone. Blackstone said that the liberty of the press meant only freedom from prior restraints; he never discussed speech. When one does examine the Speech Clause, it becomes quite clear that its protections cannot be limited to freedom for prior restraints. Most importantly, this is because during the Framing era, when speech meant in-person, oral communication, no system of prior restraints on speech was remotely possible or ever envisioned. So, if the Speech Clause only bans prior restraints, it bans nothing. A broader reading of the Speech Clause is also supported by its (admittedly sketchy) history, and by an examination of the political theory underlying the American Revolution. Indeed, not only is the Speech Clause not limited to banning prior restraints, a close examination of the historical evidence strongly suggests – though this issue cannot be definitively resolved – that a substantial portion of the Framing generation probably read the Press Clause more broadly.

What lessons can be learned from this? The first is a need for great caution in “translating” Framing era understandings into modern times, with our very different technological and cultural context. Second, when seeking “original understandings” of the Constitution, it is important to be aware that sometimes, no consensus existed. Indeed, the Framers may have given no consideration at all to specific issues. This indicates limits on the usefulness of the entire Originalist enterprise.

Bhagwat, Ashutosh Avinash, Posner, Blackstone, and Prior Restraints on Speech (February 4, 2015).

First posted 2015-02-07 09:06:09

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