I don't think it's fair to say we know exactly what the Founders had in mind when they crafted the First Amendment. But we have their words:
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.
It's fair to say the Founders distrusted strong central government. That theme runs through the Constitution (e.g., when we come to the separation of powers).
A literal reading of the First Amendment confirms this theme. "Congress shall make no law...." A literal interpretation of these five words leads inexorably to the conclusion that the Founders were focusing on what Congress could not do rather than what speakers could do.
One has to be careful in taking a literal approach to the First Amendment. Here's why, by way of two examples:
- The Supreme Court has determined that certain expressions are not "speech" for purposes of the First Amendment. Obscenity is not speech. A local government can ban obscenity if it determines the obscenity offends local community standards. As we all know, local governments have pretty much given up trying to suppress obscenity. One reason is that one person's obscene movie is another person's art flick. Another reason is that it's impossible to fashion an objective definition of obscenity that will pass muster with the courts. The closest any Supreme has come to defining obscenity is to say he knew obscenity when he saw it.
- The Supreme Court has determined that certain expressions by certain speakers are not "speech." For example, the Court has upheld censorship of prisoners. And also censorship of students in certain circumstances.
Students are a most interesting group for First Amendment purposes. I cannot go into all the cases involving student speech, but there is one case I want to point out -- Tinker v. Des Moines Independent Communmity School District (Supreme Court, 1969).
In Tinker, high school students wanted to wear plain black arm bands to school to protest the Vietnam war. The school board said they couldn't, on the grounds the arm bands alone would be disruptive. The Court sided with the students on First Amendment grounds.
Note carefully that the "speech" in Tinker -- the mere wearing of arm bands -- was "political speech." Tinker is characteristic of late 20th Century Supreme Court cases dealing with "political speech." The theme of these cases is that government censorship of "political speech" is sustainable only under the most extraordinary circumstances.
Let's turn -- albeit briefly -- to corporate "speech" and the First Amendment. There are a BUNCH of Supreme Court cases in this arena.
One famous case is New York Times v. Sullivan (1964), which held on Fiterestrst Amendment grounds that a (corpoprate) newspaper publisher could not be held civilly liable for publishing a false and libelous story about a pubic official unless the official could prove "actual malice" -- meaning knowledge of the falsity or reckless disregard of the truth.
New York Times v. Sullivan is an incredibly important case. It and its progeny establish the late 20th Century standard for how far a media corporation can go in reporting on matters of public interest. It can go as far as being libelous and wrong, so long as its error was made neither knowingly or recklessly.
I'll pause at this point and take comments or questions. If there's sufficient interest, I'll continue the story.