Podcasts | Constitutionally Speaking

Episode 31: Freedom of Speech! (Plus Press, Petition, and Assembly)

Engraving of James Madison by David Edwin, 1809-1817 (Library of Congress)

This week, Jay and Luke dig into the second part of the First Amendment. They show how Congress curtailed Madison’s original protections for free speech and a free press, while taking a look at what these freedoms meant as a practical matter to the founding generation. Politics was pretty wild in late eighteenth century. America had a robust publishing culture that mainly churned out pamphlets and broadsheets — most famously Common Sense in 1776. Heated pamphleting mirrored and fed a robust protest culture. Rioting was common, and wasn’t universally frowned upon, meaning the Framers understood “peaceable assembly” in broad terms. Hanging and burning effigies was common; people raised maypoles. There was a lot of fist-fighting and pretty much everybody was drunk. So the point of the freedom to assemble was a way of creating the latent potential for escalation, which the state would seek to avoid by coming to terms with the assembled. Petition, similarly, would allow the people to make a demand of government. The government might not do anything per se, but the government would face political pressure to give an account of itself. The colonists famously petitioned George III and used his indifference to their remonstrances as justification for revolution.

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