November 9, 2023
The Colorado Supreme Court will soon be considering the claim of cake baker Jack Phillips, who says that declining a request to create a customized cake in celebration of a gender transition is a legitimate expression of his right to free speech. He is relying on a U.S. Supreme Court decision from last year in which that court held that a website designer’s free speech rights would be violated by being required to create a website sending a message at odds with her beliefs.
To understand a discussion of cake decoration as freedom of speech, it helps to first understand the history of free speech. Given the breadth and strength of free speech protections in the U.S. today, it may be easy to take for granted that the U.S. has always maintained a policy of protecting the freedom of Americans to publicly share their views. But this is not the case.
Freedom of speech in Colonial America
The drafters of the First Amendment, were they alive today, would likely be surprised to learn that this constitutional provision led to lawsuits about things like websites and cakes. But they would not be surprised at all to learn of the existence of unpopular or controversial opinions, or of government attempts to suppress or punish such views.
The framers drew from English law on this subject. In the 1689 Declaration of Rights, Parliament included a provision aiming to protect its own deliberations: “That the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.”
Over time, though, the British common law recognized broader protections. A famous summary by William Blackstone in his Commentaries on the Laws of England explains with reference to the related freedom of the press:
Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.
The “licenser” mentioned in this passage refers to “an administrative official who enjoyed unconfined authority to pass judgment on the content of speech” after being appointed by the monarch and Parliament. This “scheme of licensing laws … punished the publication of any book or pamphlet without a license and required that all works be submitted for approval to a government official, who wielded broad authority to suppress works” he found objectionable.
The U.S. Supreme Court has noted that this type of regulation is “the core abuse” that the freedoms of speech and press were intended to prevent.
As the American colonies moved toward independence, they codified the common law protections and ensured they would be extended to all people, not just legislators. This is illustrated by a provision in the 1776 Pennsylvania Constitution: “That the people have a right to freedom of speech, and of writing, and publishing their sentiments.”
Freedom of speech in the early years of the United States
The First Amendment to the new national Constitution included the protection of the freedom to publicly state and share one’s views, even those that were unpopular or that opposed the government’s actions, without fear of censorship by the federal government. This addition was not particularly controversial, and there was little debate in Congress or in the state ratifying conventions over the proposal. Therefore there is little direct evidence about how the provision should be understood. It was clear that direct government censorship would not be allowed, but were there other limits?
That question became pressing with the passage of the Alien and Sedition Acts in 1798. A Federalist Congress enacted these laws due to fears that critics of President John Adams’ Federalist administration would give support to France in the event of a war with that nation, which seemed possible at the time. One of the laws “made it a crime for American citizens to ‘print, utter, or publish … any false, scandalous, and malicious writing’ about the government.”
The laws were vociferously denounced from many quarters. A resolution from Virginia, authored by James Madison, made the case well, arguing that the laws relied on:
A power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto,–a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.
The Alien and Sedition Acts expired or were repealed after the election of a primary critic, Thomas Jefferson, in 1800. Subsequently, they were understood to be the primary American example of an overreach that impinged on the right to free speech.
Thus, at the end of the 19th century, the aspiration that the government could neither censor or punish mere expressions of opinion was in place and generally accepted in theory. However, it was not yet well developed in practice through laws or legal rulings. That would change dramatically in the next century.
Modern protections of free speech arise out of a history in which protecting the freedom to express an opinion was not always the policy of U.S. government. Such protection for free speech began with the adoption of the ideas underlying free speech in the First Amendment, as well as popular backlash against federal government efforts to punish or suppress some speech. Recognizing that history can help us understand how that freedom today has extended into realms of artistic expression through things like website creation and cake decorating.
Insights: analysis, research, and informed commentary from Sutherland experts. For elected officials and public policy professionals.
- To understand current discussions of free speech, it helps to have a historical understanding of the constitutional protection of that right.
- At the time the First Amendment was ratified, it clearly precluded direct government censorship.
- The debate over the 1798 Alien and Sedition Acts helped establish the popularity of the idea and aspiration that the government should not punish speech merely because it was critical of the government or its policies.
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