And you notice I put it in GQ, because I assume it requires only a nice and tidy factual answer.
What was the SCOTUS original rendering of the First Amendment, specifically for freedom of speech? I mean all the way back to Marbury v. Madison (1803)? And if you want a case, okay, the Alien and Sedition Acts of 1798?
(Keep in mind that the Bill of Rights was only applicable to the federal government, and that I am aware of that fact.)
SCOTUS did not rule on the meaning of freedom of speech until 1919, according to this publication from the State Dept. Then it allowed the government to prosecute individuals for speech during wartime that would in other times be allowable. This was the “clear and present danger” ruling that Justice Oliver Wendell Holmes, Jr. made famous.
I’ll add a follow-on remark, or question: It seems to me that “Freedom of Speech” and “Freedom of the Press” are essentially the same freedom, yet the First Amendment lists those as two freedoms. Thus, there are either four or five freedoms listed there, depending on how you count them. The literal wording of the text shows five separate freedoms.
Six, actually. I find this explanation by Burt Neuborne helpful. (transcript of a podcast)
Not at all. Speech meant the spoken word and press meant the written word. They were thought of quite separately. Anybody could stand in a public square or a meeting hall or a tavern and declaim seditious words. The written word meant that one had a printing press and paper and ink and type and put out newspapers, pamphlets, broadsides, books, and other tangible materials. In English history, both types of communication were at times brutally suppressed, but in different fashion in different times. The Sedition Act of 1798 took care to do both, making it illegal to “write, print, utter or publish…any false, scandalous and malicious writing…with intent to defame the…government” or “to stir up sedition within the United States.” The Sedition Act expired in 1801 without any court ruling on it, to my knowledge.
If you’re interested, there is a law review article by Michael Gibson entitled “The Supreme Court and Freedom of Expression from 1791 to 1917”, which delves into that very issue. Available here. I didn’t read it all and its a bit belabored to me, but it does discuss what SCOTUS thought about the First Amendment before the 1918 case. Big picture: many people opine that the First Amendment was intended by the Founders to be much narrower than current jurisprudence. That’s not totally accurate.
As an aside, I don’t believe the Alien and Sedition Acts were evidence of a more limited intent of the First Amendment. They were evidence that some founders (I’m looking at you John Adams and Thomas Jefferson) were more than willing to violate the Constitution to serve their political needs.
I think it suddenly / eventually occurred to them that dissenters speaking their minds could be disruptive, and it would be better if such disruptions were not interfering with the business of government. Much as the “free speech” ideal did not include porn (until very recently) their ideal of free debate did not include rude and disruptive things said about self-important dignified administration officials.
It is very common for successful revolutionaries to proceed to then outlaw anything possibly leading to a revolt against their revolt: “there, we fixed what was wrong; nobody better be talking about us being what’s wrong…”
But the OP questiondoes look like one of those things where we may have to look to freedoms under Common Law or the various English statutes prior to independence for light.
Today we’re comfortable with the notion that we have freedom of speech but you can still be sued for libeling another person. The Federalists of 1798 went a step further–we have freedom of speech, but you can also still be prosecuted for libeling the government. The courts upheld and enforced the law with gusto. There was zero chance that an all-Federalist judiciary would rule a Federalist law unconstitutional, even if the principle of judicial review of federal laws had been firmly established, which as of that date it hadn’t.
Were the Federalists departing from the “settled understanding” of freedom of the press at the time? Not really; there was no settled understanding. The British common law allowed prosecution for seditious libel. American colonists didn’t like it, and indeed the First Amendment was arguably an attempt to restrain or even forbid such prosecution. But, there was no consensus.
After 1801 the issue faded, not so much because there was a consensus that the Sedition Act was unconstitutional but because it was unwise. It didn’t help the Federalists and even made the Adams administration look ridiculous. The Lincoln administration occasionally suppressed speech during the Civil War, but did so by holding people without trial or trying them before military commissions, which didn’t give rise to First Amendment litigation. Which is why no First Amendment case reached the Supreme Court until 1919, and another Sedition Act spurred by war hysteria during World War I.
Also of note–“obscenity” which was always seen as an exception to free speech protections, and still actually is by the courts, was very broadly defined in the 18th and 19th centuries versus how it is defined today. The famous case of Miller v California established that something that is erotic is not inherently obscene, unless other conditions were met. The framework for determining if speech is obscene was narrowed quite a lot after the Miller ruling.