Over the past several decades, the Supreme Court has repeatedly taken the position that the primary – albeit not necessarily the only – reason why the First Amendment protects freedom of speech is to advance democratic self-governance. Moreover, there is also a broad consensus among First Amendment scholars supporting this view. In this essay, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete.

The Court’s ruminations about the purpose of the Free Speech Clause fail to answer three overlapping questions. First, what is the relevance of the fact the Free Speech Clause does not stand alone, but rather is accompanied by other, equally important provisions? Second, how exactly does the Free Speech Clause, in combination with those other provisions, advance self-governance? And third, what role does the First Amendment as a whole envision for citizens in a democracy? These are important questions, requiring careful consideration that heretofore they have not received.

            The problem starts with the Supreme Court. One noteworthy feature of the Supreme Court’s modern First Amendment jurisprudence is that it is not truly a First Amendment jurisprudence at all; rather, it is series of decisions interpreting the Religions Clauses and the Free Speech Clause. The rest of the First Amendment – the Press, Assembly, and Petition Clauses – might as well not exist. The Press Clause has been entirely subsumed by the Free Speech Clause. The Assembly Clause has not been cited in over thirty years. And the Petition Clause’s relevance has been limited to the peripheral issue of access to courts. Even the nontextual right of association, which has not been entirely abandoned, has been made subservient to free speech, even though historically the right clearly derived from the Assembly Clause.

The topic of this essay, then, is those five rights – speech, press, association, assembly, and petition – what I call the Democratic First Amendment. I will argue that the Democratic First Amendment, in toto, is best read to adopt a particular vision of citizenship, one associated with the Democratic Republican philosophy of Thomas Jefferson and his allies. Citizens, on this view, are meant to be active in a myriad ways, to engage with and even challenge their elected representatives, and to develop and communicate their values and opinions jointly, through assemblies and associations. It stands in sharp contrast to the passive form of citizenship, limited to biennial voting, favored by Jefferson’s Federalist adversaries. Each of the rights of the Democratic First Amendment advance this vision of citizenship, both individually, and in combination. The First Amendment, in short, is not just democratic, it is also kaleidoscopic.

            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.

This essay provides a preview of the Reed v. Town of Gilbert, Arizona, a case currently (OT 2014) pending in the Supreme Court.  The case concerns the regulation of signs by a town government, and requires the Supreme Court to resolve a three-way circuit split on the question of how to determine whether a law is content-based or content-neutral for First Amendment purposes.  The basic question raised is whether courts should focus on the face of a statute, or on the legislative motivation behind a statute, in making that determination.  I demonstrate that under extant Supreme Court doctrine, the focus should clearly be on the face of the statute, and that under this approach the Town of Gilbert’s sign regulation is (contrary to the Ninth Circuit) clearly content-based.

That the Ninth Circuit erred here is, however, not the end of the matter. More interesting is why it erred. I argue that the Ninth Circuit’s resistance to finding Gilbert’s ordinance content-based was based on subterranean discontent with the most basic principle of modern free speech doctrine – that all content-based regulations are almost always invalid. At heart, what the Gilbert ordinance does is favor signs with political or ideological messages over other signs. Current doctrine says that this is problematic. I question whether that makes any sense. Given the broad consensus that the primary purpose of the First Amendment is to advance democratic self-government, why shouldn’t legislators, and courts, favor speech that directly advances those purposes over other speech, especially when allocating a scarce resource such as a public right of way? Given the brevity of this essay, I only raise but do not seek to answer this question, but argue that it is worthy of further attention by the Court (and of course by scholars).