The provisions of the First Amendment of the U.S. Constitution are written in absolutist terms: “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Like other provisions of the Bill of Rights, the amendment is stated as a negative right (“no law”) rather than as a mere aspiration hedged with numerous qualifications.
This absolute language has not prevented subsequent interpreters from excluding certain types of expression like child pornography, blackmail, fighting words, libel, and pornography from its coverage.
Nor has it prohibited reasonable “time, place, and manner” restrictions on such expression. The First Amendment did, however, clearly shift the onus on those seeking to restrict speech, especially political speech, rather than on those attempting to exercise it.
Scholars have long recognized that prior to the incorporation of the First Amendment and other provisions of the Bill of Rights into the due process clause of the 14th Amendment, the First Amendment applied only to Congress and the national government. In considering what to include in the Constitution, Congress rejected a proposed amendment by James Madison that would have provided specific protection for First Amendment freedoms to the states.
Despite the First Amendment prohibiting government "establishment" of religion that would favor one religion over another, the last state did not eliminate its established church until 1831, and many states continued to enforce laws against blasphemy, libel, and other forms of speech that they thought led to disorder throughout America’s early history. Congress even adopted the Sedition Act of 1798, which was aimed at punishing those who criticized the national government and the president.
Professor Fara Dabhoiwala of Princeton University argues that the absolutist wording of the First Amendment was an outlier and became even more so after the adoption of the Pennsylvania Constitution of 1790. Prior to this time, state bills of rights, such as that authored by Virginia’s George Mason, were fairly absolutist. Section 12 of the Virginia Declaration of Rights of 1776 had thus provided “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.” Other states used this or similar language in adopting their own constitutions and bills of rights.
French Declaration of the Rights of Man influences Pennsylvania free press provision
Dabhoiwala notes that in drawing up the Declaration of the Rights of Man and of the Citizen, French revolutionaries took a less absolutist approach with respect to expressive freedoms. Article II thus proclaimed that “The free communication of ideas and opinions is one of the most precious rights of man. Every citizen may therefore speak, write, and print freely, under condition of being responsible for the abuse of that liberty in cases provided for by the law” (2025, 137).
Although the Declaration arrived too late to influence debates over the First Amendment, this approach appears to have influenced the constitution that Pennsylvania adopted in 1790 in reaction to what many had perceived to be a more populist constitution that did not adequately emphasize checks and balances. Article VII of that Constitution accordingly provided:
That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government: And no law shall ever be made to restrain the right thereof. The free communication of thought and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers, investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And, in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.
Although this provision, in contrast to English law at the time and consistent with the American understanding that had developed in the wake of the Zenger trial, permitted truth as a defense in libel cases, Dabhoiwala stresses the provision’s emphasis on individuals “being responsible for the abuse of that liberty.”
Influence of the Pennsylvania provision on other states
Dabhoiwala observes that states increasingly began to use the more qualified language regarding free expression of the Pennsylvania Constitution. He points to constitutional provisions in Delaware (1792), Kentucky (1792), Tennessee (1796), Ohio (1802) and others (145-46, 2025). He further asserts that the First Amendment, which today’s Supreme Court applies to state and local laws, remains “the world’s only free-speech law framed in unconditional terms” (147, 2025).
What he views as something of a defect, others might perceive as the amendment’s strength.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.