The text of the First Amendment says "Congress shall make no law..." Does that mean in practice that the amendment doesn't apply to executive action?

by RedHermit1982

One concrete example I recall from a constitutional law class I took in college was that Lincoln used his executive authority to shut down seditious Southern papers in the Civil War. Were the limitations on government ability to suppress free speech ever extended to the executive branch through the Supreme Court?

LRVG

Does the text of the First Amendment delimit its free-speech protections to acts of Congress?

Textualism is an approach to constitutional interpretation which places emphasis on the objective text of the law. It disregards (depending on its particular flavoring) things like the intent, history, goals, or jurisprudence surrounding the text in question. Instead, the letter of a law itself is examined (in an objective and reasonable manner) in order to understand what a law actually says and means.

A textualist may indeed be willing to read the explicit syntactic subject "Congress" to signify that the 1st Amendment is solely a limitation on the federal legislature's powers. Presumably, textualists would grant these restrictions now apply to the state legislatures through incorporation. (Textualists seem to be perfectly at peace with interpreting the incorporation doctrine into the 14th amendment.)

An example of this textualist reading of the 1st Amendment can be found in Rosenkranz 2010, starting pp. 1250+, which argue that the who of the 1st Amendment is exclusively the Congress, and conclude that, for example, the Executive branch can therefore never be in violation of this Amendment. So, in principle - yes. One can literally read the First Amendment as not applying to executive actions, and some scholarship has.

Is this interpretation of the First Amendment employed in practice?

No. There was debate in the 20th century as to whether 1st Amendment protections applied only when dealing with the federal government, or should be extended to include both federal and state governments. However, my understanding is that there has never been a historical distinction drawn amongst the Amendment's applicability to the various branches within the federal government. In practice, current 1st Amendment doctrine is consistent with the belief that the executive is just as bound to respect free-speech protections as Congress is, apart from (for example) case law supporting the military's ability restrict some forms of speech from servicemembers.

This state of affairs did not arise from some sort of explicit extension of existing restrictions on the Congress to the executive; instead, these restrictions have always been taken to protect the free-speech rights of citizens from the government as a whole. The textualist reading of the 1st Amendment which proposes a distinction between Congress and the government as a whole is by far the more recent development.

A good example of current 1st amendment doctrine in practice might be New York Times Co. v. US, the decision which allowed the New York Times to publish the Pentagon Papers. All the majority opinions focused on the paper's constitutional right to freedom of the press, and on that argument's superiority the government's Executive Privilege and Espionage Act arguments. Dissenting opinions noted that 1st amendment rights could be restrained under certain circumstances, and that in essence the government had indeed met the "heavy burden of showing justification for the imposition of such a restraint." At no point was the text of the amendment itself raised or examined by either side.

Hemel 2013 ("Executive Action and the First Amendment's First Word") appears to be the only work of scholarship to address this question almost directly. It makes for interesting reading. In brief: perhaps the text of the amendment is a moot point. Even if we were to interpret the 1st Amendment "textually" and draw a distinction between restrictions on the executive and legislature, most if not all free-speech restrictions on the executive's authority would likely remain in place, as they do not depend on the 1st Amendment alone. The article however does not examine application of the 1st Amendment to the federal Judiciary, and I'm not familiar enough with jurisprudence on (for example) judicial review to comment more precisely either.

I_Provide_Feedback

No. Nothing says the President cannot use his legal authority to shut down certain kinds of speech. In fact, the courts sided with the Woodrow Wilson administration in Schenck v. United States (1919) in ensuring that certain kinds of speech can legally be restricted. This is the case where the "shouting fire in a crowded theatre" idea comes from, as that metaphor was written by Oliver Wendell Holmes in his opinion of the case.

Brandenburg v. Ohio (1969) has limited the scope on these restrictions of such speech. Not only does speech have to be directed to incite violence or lawless action, but it must also be likely to actually incite such violence or lawless action. But there haven't been any more recent court cases to explore just how to properly judge what constitutes as "likely" to incite action.

Since the First Amendment says "Congress", Congress has stayed out of enacting legislation that limits free speech. There is no federal legislation that protects you from libel and slander for example. However, many individual States have laws against intentional defamation, ensuring that libel and slander can be legally punished.

Schenck v. United States:

https://www.law.cornell.edu/supremecourt/text/249/47

Brandenburg v. Ohio:

https://supreme.justia.com/cases/federal/us/395/444/case.html

keyilan

Hello!

I've gone ahead and approved this question, but those who are looking to answer, please keep in mind our 20-year rule:

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