The First Amendment as we know it today didn’t exist until the ’60s

[DonViejo]

Neither the text nor history is a reliable guide to interpreting the amendment. And don't ask the current SCOTUS

BERT NEUBORNE

Excerpted from "Madison's Music: On Reading the First Amendment"

Reading the First Amendment isn’t easy. Consider the text:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Neither the Words nor the History Helps Much

The words themselves aren’t much help. Reading the first word, “Congress,” literally would leave the president, the military, fifty governors, and your local cops free to ignore our most important set of constitutional protections. Reading the fourth and fifth words, “no law,” literally would wind up protecting horrible verbal assaults like threats, fraud, extortion, and blackmail. The three most important words in the First Amendment—“the freedom of ”—the words that introduce, modify, and describe the crucial protections of speech, press, and assembly, simply cannot be read literally. The phrase “the freedom of ” is a legal concept that has no intrinsic meaning. Someone must decide what should or should not be placed within the protective legal cocoon. Finally, the majestic abstractions in the First Amendment, like “establishment of religion,” “free exercise thereof,” “peaceful assembly,” and “petition for a redress of grievances” do not carry a single literal meaning. In the end, each of the abstractions protects only the behavior we think it should protect.

So much for the literal text.

History (or what’s sometimes called originalism these days) is even worse as a firm guide to reading the First Amendment. The truth is that the First Amendment as we know it today didn’t exist before Justice William Brennan Jr. and the rest of the Warren Court invented it in the 1960s. In fact, history turns out to be the worst place to look for a robust First Amendment. Thomas Jefferson thought free speech was a pretty good idea, but the ink wasn’t dry on the First Amendment before President Adams locked up seventeen of the twenty newspaper editors who opposed his reelection in 1800. One of the jailed editors was Benjamin Franklin’s nephew Benjamin Franklin Bache. He died in jail. Despite the newly enacted First Amendment, not only did the federal courts remain silent in the face of Adams’s massive exercise in government censorship; they often initiated the prosecutions. Matthew Lyon, Vermont’s only Jeffersonian member of Congress, was jailed for four months and fined $1,000 for criticizing the president in his newspaper. Lyon had the last word, though. He was released just in time to cast Vermont’s swing vote for Thomas Jefferson when the presidential election of 1800 was thrown into the House, helping to seal Adams’s defeat.

more
http://www.salon.com/2015/02/16/the_first_amendment_as_we_know_it_today_didnt_exist_until_the_60s/

[Baitball Blogger]

1. They didn't "invent" the law.

It was a decision reached by legal reasoning.