Madison's First Amendment a Bulwark of Our Democracy

by Shawn Healy, PhD, Civic Learning Scholar

Sixteen years ago a large envelope arrived in the mail that forever changed the trajectory of my career. Inside, I was delighted to learn of my selection as the 2001 James Madison Fellow from my home state of Wisconsin. It entailed a scholarship for graduate school and a once-in-a-lifetime summer institute at Georgetown University, all of it centered on improving my understanding of and ability to teach the U.S. Constitution.

Thanks to the Madison Fellowship, I graduated with the masters degree in political science and pivoted immediately towards pursuit of my PhD. This journey included leaving the high school classroom eleven years ago, but my deep commitment to students’ civic development has been a constant ever since and inspired much of the work I’ve pursued at the McCormick Foundation and through the auspices of the Illinois Civic Mission Coalition.

This build-up is meant to introduce you to the Madison Fellowship and encourage you and your colleagues to explore it further. Thanks to support from the McCormick Foundation, Illinois teachers are awarded two fellowships each calendar year, and the McCormick Fellow spends a summer in our offices deeply engaged in our work to strengthen the state’s civic education system. I also encourage you to check out the “Constitutional Conversations” videos archived on the Fellowship website where leading scholars speak in short segments about constitutional history.

Recently, I was asked to don my scholarly hat and write an article on the Constitution for the Fellowship’s monthly newsletter to more than 1,000 recipients that span the continent and globe. My constitutional expertise is largely centered on the First Amendment, and recent events, including the progressive protest movement in solidarity against President Trump and his controversial policies and positions, along with the President branding the press as “enemies of the people,” have elevated its importance once more.

What follows is an excerpt from the article, but I encourage you to read it here at full length and perhaps to even integrate it into classroom instruction. Madison’s wisdom in writing it was prescient then as it is for his posterity.

The First Amendment is declarative in saying the “Congress shall make no law” respecting the five freedoms: religion, speech, press, assembly, and petition. There is a presumption against prior restraint on speech by government bodies unless it represents a grave danger to national security (see Near v. Minnesota, 1931, and New York Times v. U.S., 1971).

However, some speech can be punished after the fact if it falls within one of five categories. This includes “fighting words,” or spoken words that instigate violent reactions (see Chaplinsky v. New Hampshire, 1942), and defamation, which in the case of a public figure, must rise to “actual malice.” It constitutes leveling knowingly false charges, or demonstrating a reckless disregard for the truth (see New York Times v. Sullivan, 1964).

Speech that incites danger, where there is imminence between a call to action and the act itself is also categorically unprotected (see Brandenburg v. Ohio, 1969), as is speech that represents a true threat (as distinguished from political hyperbole; see Watts v. U.S., 1969).

Finally, obscenity is unprotected, which is material that “appears to a prurient interest,” portrays sexual conduct in an offensive fashion according to state law, and has no artistic, literary, political or scientific value. In order to be considered obscene, it must meet all three parts of this test (see Miller v. California, 1971).