by Tyson Abaroa, YourPace Staff Contributor
The first amendment to the Constitution of the United States of America covers the Congress’ relationship to four civil liberties. Congress should not establish or prohibit religion, abridge the freedom of speech, or abridge the press, or abridge the right for peaceful assembly and petition to the government. The freedom to believe, and communicate is the overarching theme of the constitution’s first amendment.
What does freedom of speech mean today? The days the constitution was written were very different than the twenty-first century that we live in now. In those days mass communication was the press. The limits to communication were based on how many papers could be distributed and how fast the type on the printing press could be changed. Now thanks to applications like X, formerly Twitter, the President of the United States can send a public message all over the world in the blink of an eye. Some news outlets can spend whole cycles on a single post by a politician.
According to Constitution.gov in the Annals of Congress 434 (1789), James Madison proposed the following as his version of what should be included in the first amendment: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press as one of the great bulwarks of liberty, shall be inviolable.” This is a more clear reading of what Madison meant in regard to what he wanted “freedom of speech, and of the press” to mean. However, that is not what ended up in the phrasing of the First Amendment. And that has led to fights over what freedom of speech and the press means or what it should mean.
How is the specific term, freedom of speech, and of the press supposed to be applied? How was it applied in the past and how is it applied today? Though access to information was not discussed in the amendment, does freedom of access have a role in speech and press?
The founders of the United States enshrined free speech into law when the Bill of Rights was ratified in December of 1791. Thus, free speech became absolute. However, within eight years the Alien and Sedition Act became a law. The reason that stands out is that this act made it illegal for “any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President . . . shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.” The skipped part is that the law’s intent was to discourage insurrection. However, it was the government officials that determined what it was that was “false, scandalous, or malicious writings”. The Alien and Sedition Act was the first challenge to the idea of free speech showing that the First Amendment has always been called into question.
The free speech debate also changes with the progress of technology. News started with printed papers but eventually began getting broadcast on radio, then on television, then print moved to online. These are what Professor Ashutosh Bhagwat labels the Old Gatekeepers of truth in his 2023 entry to the Journal of Free Speech Law. These older gatekeepers could mostly be trusted because of the industry standards for objective truth and ethics and they ability to police each other. Television broadcasting added trusted faces, such as Walter Cronkite. The invention of the smartphone and the use of social media has collapsed the Old Gatekeepers ability to maintain the standard of truth for the public now that the public creates the content on social media. Members of the Old Gatekeepers want limits put in place on X (Twitter), Facebook, and YouTube because of the rise of terms like “Fake News”, and “Misinformation”. The battles have already begun over free speech on these private platforms.
Free speech took an evolution with the Federal Freedom of Information Act of 1967 (FOIA) and Maine’s Freedom of Access Act (FOAA). While both acts are not guarantors of free speech both require executive agencies to allow records to come to light to any citizen. According to FOIA.gov “Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions.” Some of the exemptions include protecting national security, trade secrets, and current law enforcement proceedings. The importance of FOIA is so citizens and the press can provide information on the workings of the government. Likewise, the Maine Freedom of Access Act is similar to FOIA with a few different aspects. One difference that stands out is that Maine is required to allow access to public meetings. These acts have gone a long way in providing the public the knowledge of how their federal and state government have lived up to their responsibilities.
Free Speech and open access are pivotal aspects to maintaining a democratic Republic. The political system of the United States requires an informed populace. The more that ideas can be tested and debated in the press and the public square the better the theories and policies that come from free speech can be. An informed populace also needs access to know what the government is doing, how it’s doing it, and why it does what it does.
