Question: What should everyone know about the First Amendment?
Floyd Abrams: Well, I guess the first thing one has to know about the First Amendment is that it wouldn’t be there at all if Thomas Jefferson had not insisted. The Constitution had been pretty well drafted and Jefferson, who was not at the Constitution Convention and who was in Paris at that time, basically took the position that without a Bill of Rights and in particular without a Bill of Rights that protected freedom of speech and freedom of the press, that he would not support the new Constitution.
So a Bill of Rights—this Bill of Rights and this 1st Amendment—was a essential ingredient of the Constitution from the start. And from the start it protected a number of different sorts of speech beliefs, conscience, and the like. It protects freedom of religion, it protects freedom of speech, protects freedom of press, protects freedom of assembly, all of them.
And through the many years since the drafting of the Constitution and the adoption of the Bill of Rights which of course starts with the First Amendment. Through that time period we’ve had many, many cases in the courts which have adopted through interpretation the First Amendment to new problems being sustained by the people and by the states as well. At the beginning, the First Amendment applied only to the Federal Government—after all it does say, “Congress shall make no law.” After the Civil War and the adoption of amendments post-Civil War, they were held to apply to the states but really not until late 1920s, early 1930s. So through most of American history the First Amendment really had nothing to do with what states did and what state law turned out to be.
There was state constitutions but the federal Constitution, the First Amendment, applied only to the Federal Government. Where have we gone? Well we have gone through the years in a direction generally of more protection. The First Amendment, remember, applies only as a protection against the government, not against private employers, not against friends, or enemies, or this, or that. It is a protection against the government. The government depriving people of their freedom of religion. The government is telling them in effect who to pray to or whether to pray at all, and in what way. And the government depriving people of freedom of speech or freedom of the press, or freedom of assembly. I mean, at its core it is a protection of human freedom by protecting against government overreaching.
That was debated a lot when the First Amendment was adopted. Alexander Hamilton said, “Why do we need a Bill of Rights at all? Whoever said Congress could pass a law stripping the people of freedom of speech? They don’t have the power to do it, so why do we need to have a Bill of Rights or why do we need a First Amendment in the first place?” And, as I said, Jefferson insisted. Jefferson said, “Any constitution for this country ought to say and say in so many words that there was a list of untouchable areas into which Congress could not transgress, into which the new Federal, National Government couldn’t go."
And with that background—while even from the start there were problems, First Amendment problems, the Alien and Sedition Act was adopted in 1798, that close to the adoption of the Constitution and then the Bill of Rights. And it quite literally made it a crime to speak to badly of the President, then John Adams. Not the Vice President, because it was Jefferson—even then we had politics. But it made a crime to say critical things about the President at least if they were "false," which of course lead to lots of issues about what’s an opinion and what’s a fact, what’s true and what’s false. But that law was our first law which on the face of it violated the First Amendment. Jefferson called it, “living under a rain of witches.” And ultimately the verdict of history as the Supreme Court came to say, the verdict of history was that the Alien and Sedition Acts were unconstitutional and through the years some acts of Congress have been held to be unconstitutional. Many acts, more recently of states have been held to be unconstitutional, and in all these ways the adoption of the First Amendment has been an incalculable protection of the public against overstepping by the government.
Recorded July 29, 2010
Interviewed by Max Miller