First Amendment Argument Essay

First Amendment Argument Essay-39
Surprisingly, there is little definitively known about the subject.

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Justice Scalia, however, who has a narrower view of what can be accepted as evidence of original intent apart from the text of the provision itself, argued that "to prove that anonymous electioneering was used frequently is not to establish that it is a constitutional right"—perhaps the legislatures simply chose not to prohibit the speech, even though they had the constitutional power to do so.

Justice Thomas did produce evidence that some Founding-era commentators saw anonymity as constitutionally protected, Justice Scalia replied that many of these were mere "partisan cr[ies]" that said little about any generally accepted understanding.

There were a few state blasphemy laws, but they were largely unenforced from the early 1700s until the 1810s.

There were no bans on flag-burning, campaign spending, or anonymous speech.

This may but does not necessarily mean that such speech was broadly believed to be constitutionally protected; then as today, the government did not ban all that it had the power to ban.

But the paucity of such bans meant that few people in that era really had occasion to define what the constitutional boundaries of speech and press protection might be.

Several publishers were in fact convicted under the law, often under rather biased applications of the falsity requirement.

Then Federalist Congressman John Marshall, although doubtful that the Sedition Act was wise, nonetheless argued that the free press guarantee meant only "liberty to publish, free from previous restraint"—free of requirements that printers be licensed, or that their material be approved before publication.

Justices Clarence Thomas and Antonin Scalia, the Court's most devoted originalists, however, did focus on the original meaning discussion but reached different results.

Both Justices recognized that there was "no record of discussions of anonymous political expression in the First Congress, which drafted the Bill of Rights, or in the state ratifying conventions." They both recognized that much political speech in the time of the Framers (such as The Federalist itself) was anonymous.


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