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Subject Area: Political Theory

The Goals of the First Amendment - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Goals of the First Amendment

Thomas I. Emerson

  • Yale University School of Law

“Colonial Intentions and Current Realities of the First Amendment.” University of Pennsylvania Law Review 125 (April 1977): 737–760.

What were the basic purposes of the system of freedom of expression that America's founders sought to implement in the First Amendment together with its specific protections of freedom of speech, press, assembly, and petition? Also, to what degree have these original purposes of the First Amendment been realized under our current legal system?

Historical evidence reveals that American colonists intended legally protected freedom of expression to fulfill four functions: (1) to discover truth and advance knowledge and progress through free and rational inquiry or a “free trade in ideas;” (2) to allow a democratic, self-governing process by respecting the need to arrive at common decisions through freely expressed individual judgment (and, by implication, to allow individuals in nonpolitical areas of human learning and knowledge to develop religion, art, and science); (3) to allow for necessary social change without resorting to violence through a vital, rational, and peaceful discussion of issues. These first three functions of freedom of expression are encapsulated in the Continental Congress's letter to inhabitants of Quebec:

The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality and arts in general, in its diffusion of liberal sentiments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.

The fourth goal of free expression transcended social good and progress by stressing personal fulfillment and the realization of full individual potential.

The author judges that the “major discrepancy” between colonial intentions concerning free expression and today's system is the nature of the marketplace which gives some citizens more of a voice than others. However, he does not regard government regulation of press or expression as the answer: “the one thing it cannot be, and still remain a free system, is government controlled.” And further in the same vein: “The paradox of looking to government for regulation of a system that, by definition, is immune from government control presents one of the most difficult problems of our age.”

[The author's present discussion is complemented by his earlier article: “Toward a General Theory of the First Amendment.” The Yale Law Journal 72 (1963): 877–956.]