“America has less freedom of speech today than it has ever had in its history. Yet it is widely believed that it has more. Liberal law professor Archibald Cox has written: “The body of law presently defining First Amendment liberties” grew out of a “continual expansion of individual freedom of expression.” Conservative constitutional scholar Walter Berns agrees: “Legally we enjoy a greater liberty [of speech] than ever before in our history.” Both are wrong.
Liberals and libertarians applaud what Cox, Berns, and others perceive as an expansion of free speech. Conservatives sometimes deplore it, rightly assuming that the expansion in question leads to greater scope for nude dancers, pornographers and flag burners. But from the point of view of the original meaning of free speech, our speech today is much less free than it was in the early republic.”
…”The Founders’ Approach
Let us turn to the original meaning of free speech in the Constitution to see how far we have abandoned the original meaning of that document.
The Declaration of Independence calls liberty an inalienable right with which we are “endowed by our Creator.” As human beings are born free in all respects, they are also born free to speak, write and publish.
Nevertheless, although all human beings possess the same natural right to liberty, the Founders believed there is a law of nature that teaches us that no one has the right to injure another. The most obvious kind of injurious speech is personal libel. Here is a quotation from an early libel case:
[T]he heart of the libeller…is more dark and base than…his who commits a midnight arson…. [T]he injuries which are done to character and reputation seldom can be cured, and the most innocent man may, in a moment, be deprived of his good name, upon which, perhaps, he depends for all the prosperity, and all the happiness of his life.
But the Founders knew very well that allowing government to punish abuses of speech is potentially dangerous to legitimate free speech. So they relied on three pillars to secure this right of free speech while setting limits on injurious speech.

First, no speech could be prohibited by government except that which is clearly injurious. Today, as we have seen, noninjurious political and religious speech is routinely prohibited and punished through campaign finance and other laws.
Second, there could be no prior restraint of speech. Government was not permitted to withhold permission to publish if it disapproved of a publisher or his views. Today, the media from which most Americans get their news is subject to a government licensing scheme that is strikingly similar to the system by which England’s kings kept the press in line in the sixteenth and seventeenth centuries.
Third, injurious speech had to be defined in law, and punishment of it could only be accomplished by due process of law. Guilt or liability could be established only by juries—that is, by people who are not government officials. Today, clear legal standards, formal prosecutions and juries are mostly avoided in the convoluted censorship schemes employed by government in broadcasting law, campaign finance law, harassment law and the like.”
…”The Founders would have replied that we are precisely not free to define our own concept of existence and meaning. God and nature have established the “laws of nature and of nature’s God,” which have already defined it for us. Human beings, Jefferson wrote, are “inherently independent of all but moral law.” If men defy that law, they are not free. They are slaves, at first to their own passions, eventually to political tyranny. For men who cannot govern their own passions cannot sustain a democratic government.
Our task today is to recover the cause of constitutionalism. In doing so, the recovery of a proper understanding and respect for free speech must be a high priority.”
Read the whole thing….really good analysis.
I’m all for complete freedom of speech. If the powers that be want to truly reform campaign finance, they should make one law and one law only. It is: only those who have a vote should be allowed to contribute to a particular candidate’s campaign. No foreign money should be a part of the American Political Process. And on the state and local level, only members of various states should be enabled to contribute money to a local candidate or cause. No outside money or influence should be a part of a local governments political process. These reforms would force grassroots changes.
Jenny Hatch