The modern U.S. Supreme Court grants more First Amendment protection to political discourse than to other forms of expression, such as commercial advertising. The court holds that political discourse enjoys a “preferred position.”
The preferred position doctrine is taught in the nation’s law schools, so many lawyers have absorbed it. One lawyer, for example—U.S. Rep. Jim Jordan (R-OH)—repeated the modern orthodoxy in a statement made earlier this year:“When the Founders put together the First Amendment—freedom of speech, freedom of religion, freedom of the press, freedom of assembly, all those rights are extremely important—what they really focused on was your ability to speak. In particular, they weren’t focused on just any old speech, but they were focused on political speech: your right to criticize your government and not be harassed for it.”
In fact, however, the preferred position orthodoxy is wrong.
First, let’s clarify: The founding generation did not actually focus on the ability to speak. They placed much more emphasis on freedom of religion and freedom of the press. To be sure, they extended press freedom well beyond newspapers to include any communication through media. From their point of view, television and Internet advertisements would be expressions of “freedom of the press” rather than “freedom of speech.”
Second, while the Founders’ law of free expression did not tolerate the kind of vulgarity and scurrility now common in American life, it did protect a much broader range of subjects than mere politics. American notions of free expression had arisen in Great Britain, and British opinion extended free expression to drama, arts, sciences, and commercial advertising.
American views were, if anything, even broader than the British. An official letter issued by the First Continental Congress extolled freedom of the press as promoting “truth, science, morality, and arts in general.” During the debates over ratification of the Constitution, a well-regarded essayist, writing under the pseudonym “The Federal Farmer,” emphasized the value of a free press as “the channel of communication as to mercantile and public affairs—in other words, business as well as political communications. A Virginia essayist with the pseudonym “Mentor” encompassed within freedom of the press “all subjects which concern the public [welfare].”
Similarly, during the ratification debates, the editor of the newspaper called the New Hampshire Spy argued for a free press because, “In [newspapers] we find many interesting thoughts in religion, morals, politics, law, physic, agriculture, and commerce—by them we learn the state of foreign nations and foreign affairs—the various things that concern domestic economics, as well as the [chance events] of neighborhoods.
“The merchant learns the general state of trade, hears the prices current, knows his losses in every quarter of the globe—thus he and the insurer are mutually advantaged and do mutual benefit to the community,” wrote the Spy editor. “The artist hears of [opportunities] or presents an advertisement of the various things he has for sale. The learned hears of new publications—their [outlet] is increased—and innumerable advantages are extended to all.”
Although these sources refer to press freedom, the legal rules for protected speech were fairly similar. Thus, the First Amendment did not benefit merely politicians and political junkies. It protected opinion on a wide range of subjects.
To realize its promise, courts should abandon the preferred position doctrine. Business and other communications are entitled to the same level of protection applied to political discussion—subject, of course, to the same rules and limitations.