Florida's Affront To The First Amendment (Part 1)

[ Posted Tuesday, May 25th, 2021 – 16:58 UTC ]

[Program Note: This column ran so long I thought it was best to break it into two parts. In today's, I present a short history of the First Amendment and what it meant to the people who wrote it and ratified it. Tomorrow, I will examine Florida's new law and why it runs so laughably counter to both the spirit and the letter of the First Amendment and is so obviously unconstitutional. My apologies for the delayed conclusion.]

State-level Republicans are up to a whole new set of antics these days, in their continuing refusal to ever learn the true meaning of the First Amendment. The governor of Florida just signed a law whose purpose is to somehow protect the "free speech" rights of state-level politicians and conservative commenters -- by which they mean the non-existent "right" of government and politicians to dictate to social media companies how their own platforms must be used. As usual with such Republican flimflammery, the law is the exact opposite of what it purports to be -- it is a governmental attempt to "abridge the freedom of speech." Which is exactly what the First Amendment was written to prevent in the first place.

Let's begin this discussion by reviewing the text, and a little of the history of how it came into being:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Conservatives these days have mostly been pointing to the "freedom of speech" clause, but the next two are equally important in this debate as well: the freedom of the press and the freedom of assembly.

What few people who don't study American history realize or even understand is that when the Founding Fathers came up with the Constitution, the country was divided politically. These divisions ran deep -- please remember that our first experiment with self-rule (the Articles of Confederation) was an abject failure. That's why a new constitution was being drafted in the first place. The government of the United States of America is really "version 2.0," although people seldom if ever think about this.

Because a new system was being proposed, there were disagreements aplenty. One side of those arguments were preserved in what we now know as The Federalist Papers, which not everyone has actually read, but most have at least heard of (long ago, in school). They were really the winning side of the argument, since the other side (the Anti-Federalists) was arguing against ratification of the Constitution. But the companion book The Anti-Federalist Papers is just as interesting as its better-known kin, because the arguments the Anti-Federalists made resulted in the Bill of Rights.

The fact that both the U.S. Constitution was ratified and the Bill of Rights almost immediately adopted as the first ten amendments to it was a compromise, between two deeply divided factions (what we'd today now call political parties). The Federalists saw the weaknesses of the Articles of Confederation and were arguing for as strong a federal government as they could create. [The term "Federalist" is used slightly differently in today's political discussions, you'll note.] The text of the Constitution is almost entirely devoted to powers the federal government would have. And the Federalists thought that was enough.

The Anti-Federalists disagreed, and wanted to explicitly lay out all the powers the federal government would be forever barred from claiming. It is all about the rights of the individual (and to a lesser extent, the states), not the federal government. The Constitution, for the most part, bestows powers to government while the Bill of Rights limits them.

The debate, back in the 1780s and 1790s was fierce. And it was mostly waged in the newspapers of the day. That's really all there was (other than pamphlets and the like) when it came to "mass media." All of the Federalist and Anti-Federalist papers were published as anonymous letters in newspapers -- that's an important point to remember, when contemplating what the Founding Fathers were thinking while drafting these two documents.

And those newspapers, for the most part, were as partisan as can be imagined. Think Fox News is partisan? You ain't seen nothin'. Back then, whatever the owner or editor of the paper thought was pretty much what the paper printed. There was no division between editorial commentary and news items -- that barrier didn't exist yet. There certainly was no "fairness doctrine" -- there was very little unbiased "straight reporting" journalism at all. And they were all downright scathing in their commentary.

Don't believe me? Here is what the grandson of Benjamin Franklin (Benjamin Franklin Bache) wrote in his Philadelphia Aurora on the occasion of John Adams being sworn in as president, where Bache expresses his absolute joy that the presidency of George Washington had come to an end:

...the man who is the source of all the misfortunes of our country is this day reduced to a level with his fellow-citizens, and is no longer possessed of power to multiply evils upon the United States. If ever there was a period of rejoicing, this is the moment. Every heart in unison with the freedom and happiness of the people, ought to beat high with exultation that the name of Washington from this day ceased to give a currency to political iniquity and to legalized corruption. A new era is now opening upon us -- an era which promises much to the people; for public measures must now stand upon their own merits, and nefarious projects can no longer be supported by a name. It is a subject of the greatest astonishment that a single individual should have carried his designs against the public liberty so far as to have put in jeopardy its very existence. Such, however, are the facts; and with these staring us in the face, this day ought to be a jubilee in the United States.

Modernize the language a little, and you wouldn't even blink if you heard something like that on Fox News talking about either President Obama or Biden, or on MSNBC talking about President Trump. This is where the press started from in this country -- all that code of journalistic ethics and fealty to unbiased reporting came a lot later on.

And what did all this partisanship earn them? "The press" is the only private industry mentioned in either the Constitution or the Bill of Rights. And they are mentioned to put them beyond government reach forever.

Of course, the letter of this law was never truly followed all that closely. It wasn't even a decade later that the Alien and Sedition Acts took direct aim at newspapers, owners, and editors whom the current party in power (the Federalists, as it happened) didn't like. Even the "alien" part of the law was directed at what they defined as alien -- anyone who had not been born in what was now the United States. Several prominent, nationally-known Anti-Federalist newspaper editors were foreign-born. And several of them were arrested and tried under the laws. Including Franklin's grandson, who (to make it rather obvious who the law was passed to target) was actually arrested for seditious libel before the new law had even been passed.

So the disagreements about where the limits of free speech should be drawn started almost from the very beginning. These are not new arguments, by any stretch of the imagination. It is important to understand this context, I think.

[Tomorrow: Florida's new law, which Republicans in other states are already attempting to copy.]

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


13 Comments on “Florida's Affront To The First Amendment (Part 1)”

  1. [1] 
    John M from Ct. wrote:

    Fascinating stuff.

    Not knowing exactly where you're going with your connection between the First Amendment's free speech and free press, and Florida's imposition of legal limits on Facebook's freedom, I will note one thing that might make a difference:

    Everything has limits. There are no unlimited rights. Famously, one cannot yell 'fire!' in a crowded room; less famously but more relevantly, one cannot tell a crowd of angry people, 'let's go bust the door down and hang the son of a bitch!'. Ditto with the free press - there are libel laws restricting telling untruths about people that would harm those people.

    Now, the Florida law is not exactly about those cases. But what I'm thinking of is the doctrine that private enterprise is not entirely free, either. When it is large enough and important enough in a matter of how people live their daily lives - think railroads, think telephone companies, think food producers - the government has the ability to regulate the hell out of them in the name of the public good, or public safety, or public decency.

    Between the long-established limits on what a free press can say or not say, and the long-established limits on what a private company can do when its actions affect a large number of citizens' daily lives, it is at least arguable that Facebook and the gang are in for their comeuppance.

    Not necessarily from this Florida law and its buddies being prepared in other GOP-dominated states; this law is entirely too specific (we don't mean Disney!) and too clumsily written, from what I see in the papers today. But a better law could be written, and may be written as soon as the Supremes give some guidance as to what they'll accept, relevant to Florida's effort here.

    As a Facebook exec is reported to have said about a proposal that they actually read and censor everything posted on their platform or accept legal liability for it, "but that would destroy our entire business model!" Uh-huh. Suck it, child - here are some 19th century railroad execs you might like to cry on the shoulders of.

  2. [2] 
    nypoet22 wrote:

    both the federalists and the anti-federalists were supporters of pie. and when george chopped down that cherry tree, he said,

    "i cannot tell a lie, these cherries are for pie."

    clearly you just don't have the cherries to do what is right and publicly come out in support of pie. for shame.

    get edible.

  3. [3] 
    BashiBazouk wrote:

    What few people who don't study American history realize or even understand is that when the Founding Fathers came up with the Constitution, the country was divided politically. These divisions ran deep

    As my kid watches Hamilton for the umpteenth time and I look up the history all the main characters, I wonder if what we are experiencing now is the real America. We hold the post war period as the American ideal, early part for conservatives, later for the liberals, but this period may be the aberration rather than the norm...

  4. [4] 
    goode trickle wrote:

    For those of you that would like to find the hidden gems.

    Here is the text for the bill.

  5. [5] 
    goode trickle wrote:

    Having only had time to give it cursory attention, I predict some anti-trust litigation is next.

    Now interestingly, the way it is written, makes me want to see a "lib" candidate get banned from Parler, Daily Caller, or any number of other right wing media rooms, and let's not forget the festering romper rooms on Discus, or Telegram....

    Too bad they tend to be insurrection and violence leading to death adverse.

  6. [6] 
    andygaus wrote:

    [1] It's worth remembering that the statement that Justice Oliver Wendell Holmes considered to be tantamount to yelling Fire! in a crowded theater consisted in opposing the draft during World War I. So that reasoning could easily have been used to arrest Country Joe and the Fish for singing the "I-Feel-Like-I'm-Fixing-to-Die Rag" during the Vietnam War.

  7. [7] 
    John M from Ct. wrote:

    Andygaus [6] - good point. I can't remember just now - was Holmes arguing to restrict just the defendant's (Debs?) statements of opinion that the draft was wrong, or his actual advocacy for his listeners to avoid the draft and thus hurt the war effort by mass action?

    The distinction I remember from my other example was that in free speech law, simple speech of opinion is different from speech of incitement to immediate and harmful actions. But Holmes may not have been on board there.

  8. [8] 
    nypoet22 wrote:


    might as well replace every incidence of "floridian" or "florida resident" with the guy this text is actually referring to.

    if only CW would allow pie to have some media coverage, these problems could be solved.


  9. [9] 
    C. R. Stucki wrote:

    John M Ct

    Contrary to popular opinion, you cannot legally forbid "yelling fire in a crowded room", that's ridiculous. Sometime crowded rooms catch on fire.

    And I see no parallels whatsoever between railroads, which often function as 'necessary monopolies' (same as electric power companies), and social media companies that function as public billboards, and for which there is no economic justification for being considered as monopolies, when everybody has the right to create his own public billfoards.

  10. [10] 
    TheStig wrote:

    I'm gong to wade into the deep end of Constitutional Law. The following is lifted from the following web post.

    Godel's First Incompleteness Theorem states: "Any consistent formal system F within which a certain amount of elementary arithmetic can be carried out is incomplete; i.e., there are statements of the language of F which can neither be proved nor disproved in F."

    A more generalized extrapolation of Gödel’s theorem states is that for any written constitutional legal system there are propositions that are deemed true, but cannot be proved from the axioms contained within the written constitution. No amount of amending can change this situation.

    The opinions of the Supreme Court are often just opinions. Some more reasoned than others, but still opinions.

  11. [11] 
    BashiBazouk wrote:


    Yes captain pedantic, you are right in an absolute since but I think we all know John M Ct was referencing court decisions where malicious use of "yelling fire in a crowded room" when there is no fire is not protected speech. Or at least the rest of us knew...

  12. [12] 
    BashiBazouk wrote:

    I think Facebook could just geo-exclude Florida then replace the normal Facebook with a landing page explaining the legal reason. All those retired folks not able to see pictures of their grand kids would be enough to pressure this law being overturned quite quickly...

  13. [13] 
    nypoet22 wrote:

    maybe they'll all join WeChat instead. then florida can really stick it to silicon valley, in favor of our friends in... where was it again...?

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