Is the 21st century's idea of “freedom of speech” based on precedent? The Next CEO of...

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Is the 21st century's idea of “freedom of speech” based on precedent?



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1















Reading the first amendment strictly through a textualist lens it is understood that Congress cannot limit our speech, but the first amendment does not say anything about companies limiting it, or even the Executive branch limiting our freedom of expression through an executive order.



First Amendment:




Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.




Since the first amendment text is only about Congress's restrictions on making laws about speech, is the understanding that "we have the freedom of speech" based off of precedent set by courts?










share|improve this question

























  • Do you consider the view that property owners have an obligation to provide a soapbox to be "our modern understanding" – i.e. what do you take to be that modern understanding?

    – user6726
    5 hours ago











  • While the narrow final question is within the scope of Law.SE, the overall thrust of the question about a national debate and our evolving cultures and norms has a better home at Politics.SE. Early precedents also drew on English legal and political culture in the 17th and 18th centuries which is also really better suited to Politics.SE or History.SE even though the sources used by the very early case law precedents does have a legal hook.

    – ohwilleke
    1 hour ago











  • @ohwilleke might it be argued that a large factor of what law is would be the history of the law?

    – StephanS
    1 hour ago











  • The line between history and law is typically drawn based upon what current practitioners of law are referring back to in order to decide cases. Most currently relevant First Amendment case law in the U.S. dates from WWI and more recently. The broader conceptual background that gave rise to the earliest First Amendment case law is now all but irrelevant except as a historical footnote.

    – ohwilleke
    1 hour ago













  • @ohwilleke respectfully, although the law is governed by such historical precedent, the law and its precedent are still extremely relevant today and in the modern interpretation of the law. I do agree that the setup for this question is broad and I will work to fix future edits to better fit the scope of the site.

    – StephanS
    1 hour ago
















1















Reading the first amendment strictly through a textualist lens it is understood that Congress cannot limit our speech, but the first amendment does not say anything about companies limiting it, or even the Executive branch limiting our freedom of expression through an executive order.



First Amendment:




Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.




Since the first amendment text is only about Congress's restrictions on making laws about speech, is the understanding that "we have the freedom of speech" based off of precedent set by courts?










share|improve this question

























  • Do you consider the view that property owners have an obligation to provide a soapbox to be "our modern understanding" – i.e. what do you take to be that modern understanding?

    – user6726
    5 hours ago











  • While the narrow final question is within the scope of Law.SE, the overall thrust of the question about a national debate and our evolving cultures and norms has a better home at Politics.SE. Early precedents also drew on English legal and political culture in the 17th and 18th centuries which is also really better suited to Politics.SE or History.SE even though the sources used by the very early case law precedents does have a legal hook.

    – ohwilleke
    1 hour ago











  • @ohwilleke might it be argued that a large factor of what law is would be the history of the law?

    – StephanS
    1 hour ago











  • The line between history and law is typically drawn based upon what current practitioners of law are referring back to in order to decide cases. Most currently relevant First Amendment case law in the U.S. dates from WWI and more recently. The broader conceptual background that gave rise to the earliest First Amendment case law is now all but irrelevant except as a historical footnote.

    – ohwilleke
    1 hour ago













  • @ohwilleke respectfully, although the law is governed by such historical precedent, the law and its precedent are still extremely relevant today and in the modern interpretation of the law. I do agree that the setup for this question is broad and I will work to fix future edits to better fit the scope of the site.

    – StephanS
    1 hour ago














1












1








1








Reading the first amendment strictly through a textualist lens it is understood that Congress cannot limit our speech, but the first amendment does not say anything about companies limiting it, or even the Executive branch limiting our freedom of expression through an executive order.



First Amendment:




Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.




Since the first amendment text is only about Congress's restrictions on making laws about speech, is the understanding that "we have the freedom of speech" based off of precedent set by courts?










share|improve this question
















Reading the first amendment strictly through a textualist lens it is understood that Congress cannot limit our speech, but the first amendment does not say anything about companies limiting it, or even the Executive branch limiting our freedom of expression through an executive order.



First Amendment:




Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.




Since the first amendment text is only about Congress's restrictions on making laws about speech, is the understanding that "we have the freedom of speech" based off of precedent set by courts?







united-states freedom-of-speech first-amendment textualism






share|improve this question















share|improve this question













share|improve this question




share|improve this question








edited 21 mins ago







StephanS

















asked 5 hours ago









StephanSStephanS

38819




38819













  • Do you consider the view that property owners have an obligation to provide a soapbox to be "our modern understanding" – i.e. what do you take to be that modern understanding?

    – user6726
    5 hours ago











  • While the narrow final question is within the scope of Law.SE, the overall thrust of the question about a national debate and our evolving cultures and norms has a better home at Politics.SE. Early precedents also drew on English legal and political culture in the 17th and 18th centuries which is also really better suited to Politics.SE or History.SE even though the sources used by the very early case law precedents does have a legal hook.

    – ohwilleke
    1 hour ago











  • @ohwilleke might it be argued that a large factor of what law is would be the history of the law?

    – StephanS
    1 hour ago











  • The line between history and law is typically drawn based upon what current practitioners of law are referring back to in order to decide cases. Most currently relevant First Amendment case law in the U.S. dates from WWI and more recently. The broader conceptual background that gave rise to the earliest First Amendment case law is now all but irrelevant except as a historical footnote.

    – ohwilleke
    1 hour ago













  • @ohwilleke respectfully, although the law is governed by such historical precedent, the law and its precedent are still extremely relevant today and in the modern interpretation of the law. I do agree that the setup for this question is broad and I will work to fix future edits to better fit the scope of the site.

    – StephanS
    1 hour ago



















  • Do you consider the view that property owners have an obligation to provide a soapbox to be "our modern understanding" – i.e. what do you take to be that modern understanding?

    – user6726
    5 hours ago











  • While the narrow final question is within the scope of Law.SE, the overall thrust of the question about a national debate and our evolving cultures and norms has a better home at Politics.SE. Early precedents also drew on English legal and political culture in the 17th and 18th centuries which is also really better suited to Politics.SE or History.SE even though the sources used by the very early case law precedents does have a legal hook.

    – ohwilleke
    1 hour ago











  • @ohwilleke might it be argued that a large factor of what law is would be the history of the law?

    – StephanS
    1 hour ago











  • The line between history and law is typically drawn based upon what current practitioners of law are referring back to in order to decide cases. Most currently relevant First Amendment case law in the U.S. dates from WWI and more recently. The broader conceptual background that gave rise to the earliest First Amendment case law is now all but irrelevant except as a historical footnote.

    – ohwilleke
    1 hour ago













  • @ohwilleke respectfully, although the law is governed by such historical precedent, the law and its precedent are still extremely relevant today and in the modern interpretation of the law. I do agree that the setup for this question is broad and I will work to fix future edits to better fit the scope of the site.

    – StephanS
    1 hour ago

















Do you consider the view that property owners have an obligation to provide a soapbox to be "our modern understanding" – i.e. what do you take to be that modern understanding?

– user6726
5 hours ago





Do you consider the view that property owners have an obligation to provide a soapbox to be "our modern understanding" – i.e. what do you take to be that modern understanding?

– user6726
5 hours ago













While the narrow final question is within the scope of Law.SE, the overall thrust of the question about a national debate and our evolving cultures and norms has a better home at Politics.SE. Early precedents also drew on English legal and political culture in the 17th and 18th centuries which is also really better suited to Politics.SE or History.SE even though the sources used by the very early case law precedents does have a legal hook.

– ohwilleke
1 hour ago





While the narrow final question is within the scope of Law.SE, the overall thrust of the question about a national debate and our evolving cultures and norms has a better home at Politics.SE. Early precedents also drew on English legal and political culture in the 17th and 18th centuries which is also really better suited to Politics.SE or History.SE even though the sources used by the very early case law precedents does have a legal hook.

– ohwilleke
1 hour ago













@ohwilleke might it be argued that a large factor of what law is would be the history of the law?

– StephanS
1 hour ago





@ohwilleke might it be argued that a large factor of what law is would be the history of the law?

– StephanS
1 hour ago













The line between history and law is typically drawn based upon what current practitioners of law are referring back to in order to decide cases. Most currently relevant First Amendment case law in the U.S. dates from WWI and more recently. The broader conceptual background that gave rise to the earliest First Amendment case law is now all but irrelevant except as a historical footnote.

– ohwilleke
1 hour ago







The line between history and law is typically drawn based upon what current practitioners of law are referring back to in order to decide cases. Most currently relevant First Amendment case law in the U.S. dates from WWI and more recently. The broader conceptual background that gave rise to the earliest First Amendment case law is now all but irrelevant except as a historical footnote.

– ohwilleke
1 hour ago















@ohwilleke respectfully, although the law is governed by such historical precedent, the law and its precedent are still extremely relevant today and in the modern interpretation of the law. I do agree that the setup for this question is broad and I will work to fix future edits to better fit the scope of the site.

– StephanS
1 hour ago





@ohwilleke respectfully, although the law is governed by such historical precedent, the law and its precedent are still extremely relevant today and in the modern interpretation of the law. I do agree that the setup for this question is broad and I will work to fix future edits to better fit the scope of the site.

– StephanS
1 hour ago










1 Answer
1






active

oldest

votes


















3














Trivially, yes



The first amendment was adopted on December 15, 1791.



Every time there has been a dispute about what it means that has gone to court since then, the judgement of that court has established, overturned or clarified precedent - that's what common law courts do.



The government can limit your speech



The Supreme Court has recognized categories of speech which receive lesser or no protection from the first amendment. For example, inciting lawless actions, fighting words, true threats, obscenity, child pornography etc.



They have also determined that it doesn't limit the government's power to impose reasonable time, place or manner restrictions on speech. As Justice Holmes put it in Schenck v. United States (1918), "Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic."



It applies to parts of government which derive their power from Congress



Which is, in most cases, all government.



The executive actually has surprisingly little power granted by the Constitution (Article II, Section 2). All the other powers of the executive are technically delegated powers of Congress and are therefore subject to the first amendment.



Similarly, only the Supreme Court draws its mandate without going through Congress Article III, Section 1) - all other courts are subject to first amendment restrictions.



It only restricts government



The limitation is a negative one on the US Congress (and through incorporation, the states). It does not, of itself, restrict private actors who are free to restrict speech however they want within their own property, including both physical and online spaces.



It is open to the government to enact laws that would extend an affirmative right to free speech onto non-state actors (see Pruneyard Shopping Center v Robins (1980)), however, the Federal government has not done so and neither have most states.






share|improve this answer


























  • Marsh v. Alabama is also interesting. 'The Court rejected that contention, noting that ownership "does not always mean absolute dominion."'

    – Alexander
    1 hour ago












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1 Answer
1






active

oldest

votes








1 Answer
1






active

oldest

votes









active

oldest

votes






active

oldest

votes









3














Trivially, yes



The first amendment was adopted on December 15, 1791.



Every time there has been a dispute about what it means that has gone to court since then, the judgement of that court has established, overturned or clarified precedent - that's what common law courts do.



The government can limit your speech



The Supreme Court has recognized categories of speech which receive lesser or no protection from the first amendment. For example, inciting lawless actions, fighting words, true threats, obscenity, child pornography etc.



They have also determined that it doesn't limit the government's power to impose reasonable time, place or manner restrictions on speech. As Justice Holmes put it in Schenck v. United States (1918), "Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic."



It applies to parts of government which derive their power from Congress



Which is, in most cases, all government.



The executive actually has surprisingly little power granted by the Constitution (Article II, Section 2). All the other powers of the executive are technically delegated powers of Congress and are therefore subject to the first amendment.



Similarly, only the Supreme Court draws its mandate without going through Congress Article III, Section 1) - all other courts are subject to first amendment restrictions.



It only restricts government



The limitation is a negative one on the US Congress (and through incorporation, the states). It does not, of itself, restrict private actors who are free to restrict speech however they want within their own property, including both physical and online spaces.



It is open to the government to enact laws that would extend an affirmative right to free speech onto non-state actors (see Pruneyard Shopping Center v Robins (1980)), however, the Federal government has not done so and neither have most states.






share|improve this answer


























  • Marsh v. Alabama is also interesting. 'The Court rejected that contention, noting that ownership "does not always mean absolute dominion."'

    – Alexander
    1 hour ago
















3














Trivially, yes



The first amendment was adopted on December 15, 1791.



Every time there has been a dispute about what it means that has gone to court since then, the judgement of that court has established, overturned or clarified precedent - that's what common law courts do.



The government can limit your speech



The Supreme Court has recognized categories of speech which receive lesser or no protection from the first amendment. For example, inciting lawless actions, fighting words, true threats, obscenity, child pornography etc.



They have also determined that it doesn't limit the government's power to impose reasonable time, place or manner restrictions on speech. As Justice Holmes put it in Schenck v. United States (1918), "Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic."



It applies to parts of government which derive their power from Congress



Which is, in most cases, all government.



The executive actually has surprisingly little power granted by the Constitution (Article II, Section 2). All the other powers of the executive are technically delegated powers of Congress and are therefore subject to the first amendment.



Similarly, only the Supreme Court draws its mandate without going through Congress Article III, Section 1) - all other courts are subject to first amendment restrictions.



It only restricts government



The limitation is a negative one on the US Congress (and through incorporation, the states). It does not, of itself, restrict private actors who are free to restrict speech however they want within their own property, including both physical and online spaces.



It is open to the government to enact laws that would extend an affirmative right to free speech onto non-state actors (see Pruneyard Shopping Center v Robins (1980)), however, the Federal government has not done so and neither have most states.






share|improve this answer


























  • Marsh v. Alabama is also interesting. 'The Court rejected that contention, noting that ownership "does not always mean absolute dominion."'

    – Alexander
    1 hour ago














3












3








3







Trivially, yes



The first amendment was adopted on December 15, 1791.



Every time there has been a dispute about what it means that has gone to court since then, the judgement of that court has established, overturned or clarified precedent - that's what common law courts do.



The government can limit your speech



The Supreme Court has recognized categories of speech which receive lesser or no protection from the first amendment. For example, inciting lawless actions, fighting words, true threats, obscenity, child pornography etc.



They have also determined that it doesn't limit the government's power to impose reasonable time, place or manner restrictions on speech. As Justice Holmes put it in Schenck v. United States (1918), "Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic."



It applies to parts of government which derive their power from Congress



Which is, in most cases, all government.



The executive actually has surprisingly little power granted by the Constitution (Article II, Section 2). All the other powers of the executive are technically delegated powers of Congress and are therefore subject to the first amendment.



Similarly, only the Supreme Court draws its mandate without going through Congress Article III, Section 1) - all other courts are subject to first amendment restrictions.



It only restricts government



The limitation is a negative one on the US Congress (and through incorporation, the states). It does not, of itself, restrict private actors who are free to restrict speech however they want within their own property, including both physical and online spaces.



It is open to the government to enact laws that would extend an affirmative right to free speech onto non-state actors (see Pruneyard Shopping Center v Robins (1980)), however, the Federal government has not done so and neither have most states.






share|improve this answer















Trivially, yes



The first amendment was adopted on December 15, 1791.



Every time there has been a dispute about what it means that has gone to court since then, the judgement of that court has established, overturned or clarified precedent - that's what common law courts do.



The government can limit your speech



The Supreme Court has recognized categories of speech which receive lesser or no protection from the first amendment. For example, inciting lawless actions, fighting words, true threats, obscenity, child pornography etc.



They have also determined that it doesn't limit the government's power to impose reasonable time, place or manner restrictions on speech. As Justice Holmes put it in Schenck v. United States (1918), "Even the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic."



It applies to parts of government which derive their power from Congress



Which is, in most cases, all government.



The executive actually has surprisingly little power granted by the Constitution (Article II, Section 2). All the other powers of the executive are technically delegated powers of Congress and are therefore subject to the first amendment.



Similarly, only the Supreme Court draws its mandate without going through Congress Article III, Section 1) - all other courts are subject to first amendment restrictions.



It only restricts government



The limitation is a negative one on the US Congress (and through incorporation, the states). It does not, of itself, restrict private actors who are free to restrict speech however they want within their own property, including both physical and online spaces.



It is open to the government to enact laws that would extend an affirmative right to free speech onto non-state actors (see Pruneyard Shopping Center v Robins (1980)), however, the Federal government has not done so and neither have most states.







share|improve this answer














share|improve this answer



share|improve this answer








edited 4 hours ago

























answered 4 hours ago









Dale MDale M

55.9k23579




55.9k23579













  • Marsh v. Alabama is also interesting. 'The Court rejected that contention, noting that ownership "does not always mean absolute dominion."'

    – Alexander
    1 hour ago



















  • Marsh v. Alabama is also interesting. 'The Court rejected that contention, noting that ownership "does not always mean absolute dominion."'

    – Alexander
    1 hour ago

















Marsh v. Alabama is also interesting. 'The Court rejected that contention, noting that ownership "does not always mean absolute dominion."'

– Alexander
1 hour ago





Marsh v. Alabama is also interesting. 'The Court rejected that contention, noting that ownership "does not always mean absolute dominion."'

– Alexander
1 hour ago


















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