Posner, Blackstone, and Prior Restraints on Speech

INTRODUCTIONIn May of 2012, a panel of the U.S. Court of Appeals for the Seventh Circuit decided American Civil Liberties Union of Illinois v. Alvarez, holding that an Illinois statute prohibiting the taping of conversations without the consent of all parties to the conversation, as applied to a program intending to openly record police officers performing their duties in public, violated the First Amendment.1 Judge Richard Posner dissented. Most of his opinion concerned the impact of the proposed recordings on privacy and on police effectiveness. However, in an introductory passage Judge Posner had this to say about the broader history of the First Amendment:Judges asked to affirm novel "interpretations" of the First Amendment should be mindful that the constitutional right of free speech, as construed nowadays, is nowhere to be found in the Constitution. The relevant provision of the First Amendment merely forbids Congress to abridge free speech, which as understood in the eighteenth century meant freedom only from censorship (that is, suppressing speech, rather than just punishing the speaker after the fact). A speaker could be prosecuted for seditious libel, for blasphemy, and for much other reprobated speech besides, but in a prosecution he would at least have the protection of trial by jury, which he would not have if hauled before a censorship board; and his speech or writing would not have been suppressed, which is what censorship boards do. Protection against censorship was the only protection that the amendment was understood to create.2In support of his argument, Judge Posner cited Justice Holmes's famous (or infamous) opinion in Patterson v. Colorado3 and Blackstone's Commentaries,4 along with Seventh Circuit precedent5 and Akhil Amar's groundbreaking work on the Bill of Rights.6 He then emphasized that limiting the First Amendment to condemning censorship-meaning a system of prior restraints through licensing- "is the original understanding," arguing that this fact should make judges hesitant to adopt aggressive expansions of the right of free speech.7Judge Posner's understanding of the First Amendment's history as reaching only prior restraints on speech has a long pedigree and strong support. In addition to Holmes and Blackstone, he could easily have cited Joseph Story,8 leading Framer and later Supreme Court Justice James Wilson,9 and two early cases from Pennsylvania10 and Massachusetts.11 The problem is that this understanding is wrong. And not only is it wrong, aspects of it are clearly and obviously wrong. How could the preeminent appellate judge of his generation (to say nothing of his illustrious sources) possibly make such a mistake?In this brief essay, I seek to shed some light on this conundrum, and on the relationship between prior restraints and First Amendment history more generally. What emerges from this investigation is a complex set of fundamental issues, including evolving linguistic meanings and understandings due to changing culture and technology, the oversimplification by many of a very complex history, and most fundamentally, an overly aggressive push by lawyers to find consensus among the Framing generation in the face of overwhelming evidence of ambiguity and disagreement.I. MISQUOTING BLACKSTONE12Our story begins with a misquotation of sorts. As noted above, in his dissent in ACLU v. Alvarez Judge Posner stated that the original understanding of the First Amendment was that it protected speech only against "censorship," meaning prior restraints.13 In support of his argument, he cited numerous sources, including Justice Holmes's Patterson opinion and Blackstone's Commentaries.14 William Blackstone's Commentaries on the Laws of England are the primary source of the theory that the First Amendment forbids only prior restraints, largely because of the strong influence Blackstone had on the Framing generation's understanding of traditional English common law rights. …