PRO AND CON ON “ORIGINAL INTENT” TO INTERPRET THE CONSTITUTION
Journalists for the most part do not think like lawyers, but perhaps they should do so, if only in self-defense. It is understandable that journalists adopt the First Amendment-as-symbol to stand for freedom of expression, but they should be surprised if they witness some shrinkage of First Amendment protections. Speech and press freedoms truly may be diminished if judicial readings of “original intent” yearn backwards to the days before there was a Bill of Rights.
Again, remember the words of the First Amendment. It declares: “Congress shall make no law . . .”, meaning that the First Amendment did not apply to state and local governments. This does not sit well with some American conservatives of the 20th and 21st Centuries. In a speech in the summer of 1985, Attorney General Edwin Meese III took aim at what is called the “incorporation doctrine”—the doctrine originating in a 1925 Supreme Court of the United States decision in Gitlow v. New York. 10 In that decision, the Court stated that states are restrained by the federal Bill of Rights. The Court upheld a conviction of Benjamin Gitlow for violating a New York statute forbidding advocacy of criminal anarchy, overthrowing government by force or violence or assassinating public officials.
Although Gitlow went to prison, the Court’s majority opinion nevertheless declared , in a kind of judicial aside, that protections of the First Amendment were applicable to the states through the Fourteenth Amendment. The Fourteenth Amendment, adopted in 1868 to protect the rights of former slaves freed by the Civil War, says: “[N]o state shall deprive any person of life, liberty, or property, without due process of law. * * * “11
By incorporating First Amendment protections of speech into the Fourteenth Amendment’s protections against arbitrary state action,12 the Gitlow decision suggested a mechanism for nationalizing the First Amendment’s power beyond the federal government. Gitlow opened a procedural door to allow the Supreme Court to strike down most kinds of governmental prior restraint (pre-publication censorship) in Near v. Minnesota (1931).13 Without Gitlow and Near, the Supreme Court would have lacked precedent to halt punitive libel lawsuits against the media by public officials in Alabama and other states. The Court would have been unable to tell Alabama that public officials suing the media for comments about their official conduct would have to meet a tough standard of proof in order to win damages in a libel suit.14
10 Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct., 625, 630 (1925).
11 U.S. Constitution, Amendment 14.
12Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625 (1925).
13 Near v. Minnesota, 283 U.S.697, 51 S.Ct. 625 (1931). The Court said prior restraint was allowable only in rare instances, such as stopping dissemination of harmful information (such as troop movements) in wartime, or halting obscenity, or stopping punishments inciting violence or the overthrow of government.
14 New York Times v. Sullivan, 376 U.S., 254, 279-280, 84 S.Ct. 710, 725-726 (1964). The Court held that the newspaper had not committed an actionable libel against Montgomery, AL, segregationist commissioner L.B. Sullivan by running an advertisement by civil rights organizations criticizing Montgomery police and fire officials for violating civil rights. The Court set up a difficult standard of proof: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood unless he proves that the statement was made with ‘actual malice,’ that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”