When the Constitution was drafted, many Americans didn't feel it was complete without a Bill of Rights. Fresh off a revolution motivated by England's denial of the colonists' civil rights, they feared a centralized national government with the ability to trample their hard-earned freedom. To secure votes needed to ratify the Constitution, a number of amendments were promised that would become the Bill of Rights. The first of these amendments protects freedom of speech.
Lessons from History
The former colonists had brought with them a tradition of protection for freedom of speech from England. As early as 1215, the Magna Carta had established that no one, not even a king, was above the law. William Blackstone's writing on the English common law established the principle that, at the very least, the government should not censor people or keep them from publishing something in advance. In the colonies, the 1735 trial of printer John Peter Zenger on charges of seditious libel had established a core principle of free speech: that truth was a defense to libel and that a jury may determine whether the publication is defamatory.
Democratic Ideals and Social Stability
Many philosophical theories promote freedom of speech as essential to enhance democratic government. During the Constitution's drafting, the former colonists understood that if the government prohibited people from talking about certain things, it would just drive that speech underground. In this way, the First Amendment promotes transparency. People forced to talk in secret may resort to acting in violence to express their points of view, but allowing the open exchange of ideas allows them to vent peacefully. Additionally, free speech promotes a more representative and transparent government because voters have the ability to learn all sides of social and political issues.
Protection of Essential Rights
In 1776, George Mason drafted Virginia's Declaration of Rights, the first bill of rights in an American state constitution. Mason became one of the most outspoken critics of the Constitution because it had no similar declaration of rights to protect the civil liberties of individual citizens. For Mason and others, true liberty wasn't possible without these rights being specifically protected in the government's founding document. The Federalist Papers, written by those in favor of ratifying the Constitution, ensured that freedom of speech and the press would be protected. However, without an explicit statement to that effect, Mason and other Anti-Federalists argued, Congress could make laws that limited freedom of speech.
Madison and the Anti-Federalists
James Madison supported the Constitution and was one of the writers of the Federalist Papers. However, by 1788 he became convinced the Constitution wouldn't be ratified unless some sort of declaration of rights was promised. Foremost among the amendments Madison drafted was one protecting freedom of speech. He'd originally drafted another prohibiting states from infringing on this freedom as well, but that amendment didn't pass Congress. Madison's support proved crucial to ensuring the Bill of Rights made it through Congress for approval by the states.
- National Archives: The Charters of Freedom: Bill of Rights
- National Archives: The Charters of Freedom: Constitution of the United States: A History
- IIP Digital: Freedom of Expression in the United States
- University of Missouri-Kansas City School of Law: Exploring Constitutional Conflicts: Introduction to the Free Speech Clause
- First Amendment Center: First Amendment Timeline
- Comstock Images/Stockbyte/Getty Images