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Why We Have A First Amendment

By Frank Corrado, Esquire

In my last post, I talked about what the First Amendment means – how, despite the amendment’s seemingly absolute requirement that the state “make no law” abridging speech, the government can sometimes regulate, and even forbid, certain kinds of expression.

In this post I want to talk about the values served by the First Amendment – why we want speech to be protected against government interference.

As a general matter, the First Amendment serves three important purposes.

First, it ensures that there will be free and open discussion on issues of public importance.   This is the classic rationale for the First Amendment:  that it creates a “marketplace of ideas.”  As Justice Holmes put it, “The ultimate good desired is better reached by free trade in ideas. … The best test of truth is the power of the thought to get itself accepted in the competition of the market.”

Second, the First Amendment facilitates democratic self-government.   Free speech leads to an informed populace, and democracy works best when the people are well-enough informed to make good decisions about who should govern them and what government should and shouldn’t do.  For many people, this is the heart of the First Amendment – its “central meaning,” in the words of Justice Brennan – and the reason why we tolerate robust, and sometimes nasty, debate on public issues.

Finally, the First Amendment protects individual autonomy and human dignity.  It ensures that the government cannot tell us what to say, what to read, how to think or with whom we may associate.    We are intelligent human beings, capable of organizing our own lives, and the government is not our daddy or big brother.   As Justice Jackson once wrote:  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”

These are important purposes, but sometimes they can conflict.   For example, a First Amendment that protects individual choices – that gives wealthy individuals the right to contribute unlimited amounts of money to political campaigns – can conflict with a First Amendment that seeks to promote a robust democracy.

In future columns, I will discuss how the courts have attempted to mediate among these sometimes antithetical First Amendment values.   In the meantime however, if you have questions about your First Amendment rights, or about any of your civil rights, please do not hesitate to contact us.

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