” ‘[T]here is practically universal agreement
that a major purpose of’ the First Amendment
‘was to protect the free discussion of governmental affairs’
. . . .” Ariz. Free Enter. Club’s Freedom Fund PAC
v. Bennett, 131 S. Ct. 2806, 2828 (2011) (quoting Buckley,
424 U.S. at 14).
“the First Amendment goes beyond
protection of the press and self-expression of individuals
to prohibit government from limiting the
stock of information from which members of the public
may draw.” First Nat’l Bank of Bos. v. Bellotti, 435 U.S.
765, 783 (1977).
The freedom of speech and press “ ‘embraces
at the least the liberty to discuss publicly and
truthfully all matters of public concern without previous
restraint or fear of subsequent punishment.’ ” Id. at 767
(quoting Thornhill v. Alabama, 310 U.S. 88, 101-02 (1940)).
Whig commentator Thomas
Gordon explained:
“That Men ought to speak well of their Governours
is true, while their Governours deserve to be well
spoken of; but to do publick Mischief, without hearing
of it, is only the Prerogative and Felicity of Tyranny:
A free People will be shewing that they are so, by
their Freedom of Speech.
The Administration of Government, is nothing
else but the Attendance of the Trustees of the People
upon the Interest and Affairs of the People: And as it
is the Part and Business of the People, for whose
Sake alone all publick Matters are, or ought to be
transacted, to see whether they be well or ill transacted;
so it is the Interest, and ought to be the Ambition,
of all honest Magistrates, to have their Deeds
openly examined, and publickly scann’d.”
--Silence Dogood No. 8, THE NEW-ENGLAND COURANT
(Boston), July 9, 1722, reprinted in 1 THE PAPERS OF
BENJAMIN FRANKLIN 28 (Leonard W. Labaree et al. eds.,
1959) (quoting Cato’s Letter No. 15).
The Virginia General
Assembly objected to the infamous Sedition Act of 1798
in part “because it is levelled against that right of freely
examining public characters and measures, and of free communication
among the people thereon.” Virginia Resolutions
of 1798, reprinted in 17 THE PAPERS OF JAMES
MADISON 189-90 (David B. Mattern et al. eds., 1991)
(emphasis added).
In his famous 1868
treatise on constitutional law, Thomas Cooley explained
that a foremost purpose of the Constitution’s guarantee
of speech and press liberty is
to secure the[] right to a free discussion of public
events and public measures, and to enable every
citizen at any time to bring the government and any
person in authority to the bar of public opinion by any
just criticism upon their conduct in the exercise of the
authority which the people have conferred upon them.
To guard against repressive measures by the several
departments of government, by means of which
persons in power might secure themselves and
their favorites from just scrutiny and condemnation,
was the general purpose . . . . The evils to be
guarded against were not the censorship of the press
merely, but any action of the government by means
of which it might prevent such free and general discussion
of public matters as seems absolutely
essential to prepare the people for an intelligent
exercise of their rights as citizens.
THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL
LIMITATIONS 421-22 (1868) (emphasis added);
“[A]s a general matter, the First Amendment
means that government has no power to restrict
expression because of its message, its ideas, its subject
matter, or its content.” Ashcroft v. ACLU, 535 U.S. 564,
573 (2002)
the Government may commit a constitutional wrong
when by law it identifies certain preferred speakers.
By taking the right to speak from some and giving it
to others, the Government deprives the disadvantaged
person or class of the right to use speech to
strive to establish worth, standing, and respect for
the speaker’s voice.
Citizens United v. Federal Election
Commission, 130 S. Ct. 899, 905-06 (2010);
Bartnicki v. Vopper, 532
U.S. 514, 532 (2001) (“Privacy of communication is an
important interest . . . .”). Indeed, the protection of personal
conversational privacy serves First Amendment
interests because “fear of public disclosure of private
conversations might well have a chilling effect on
private speech.” Id. at 533.
Katz, 389 U.S. at 351 (“What a person knowingly exposes
to the public . . . is not a subject of Fourth Amendment
protection.”); id. at 361 (Harlan, J., concurring)
(“[C]onversations in the open would not be protected
against being overheard, for the expectation of privacy
under the circumstances would be unreasonable.”).
Rather than attempting to
tailor the statutory prohibition to the important goal
of protecting personal privacy, Illinois has banned
nearly all audio recording without consent of the parties—
including audio recording that implicates no
privacy interests at all.
...
Nothing we have said here immunizes
behavior that obstructs or interferes with effective
law enforcement or the protection of public safety.
ACLU v. Alvarez
Even today, with the right to free
speech expanding in all directions, it remains a partial,
a qualified, right. To make it complete would render
unconstitutional defamation law, copyright law, trade
secret law, and trademark law; tort liability for wiretapping,
other electronic eavesdropping, and publicly
depicting a person in a “false light”; laws criminalizing
the publication of military secrets and the dissemination
of child pornography; conspiracy law (thus including
much of antitrust law); prohibitions of criminal solicitation,
threats and fighting words, securities fraud, and
false advertising of quack medical remedies; the regulation
of marches, parades, and other demonstrations
whatever their objective; limitations on free speech
in prisons; laws limiting the televising of judicial proceedings;
what little is left of permitted regulation
of campaign expenditures; public school disciplining of
inflammatory or disruptive student speech; the attorney-client,
spousal, and physician-patient privileges in cases
in which an attorney or spouse or physician would like
to speak but is forbidden by the privilege to do so;
laws making medical records confidential; and prohibitions
against the public disclosure of jurors’ names in
cases in which jurors might be harassed.
...
Privacy is a social value. And so, of course, is public
safety. The constitutional right that the majority creates
is likely to impair the ability of police both to extract
information relevant to police duties and to communicate
effectively with persons whom they speak with in
the line of duty. An officer may freeze if he sees a journalist
recording a conversation between the officer and
a crime suspect, crime victim, or dissatisfied member
of the public. He may be concerned when any stranger
moves into earshot, or when he sees a recording
device (even a cell phone, for modern cell phones are
digital audio recorders) in the stranger’s hand. To
distract police during tense encounters with citizens
endangers public safety and undermines effective law
enforcement.
-- Posner, circuit judge, dissenting in ACLU v. Alvarez
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