‘Make No Law’ Undergirds the Rule of Law

The first amendment on display in front of Independence Hall in Philadelphia.

On May 1 — Law Day 2019 — we honor a constitutional provision that says “make no law,” as we commemorate the rule of law in the United States.

“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.” (Emphasis added.)

That a constitutional command “make no law” undergirds the American system of the rule of law (and thus American democracy) is, to be sure, ironic. Of course, it is an apt illustration of what philosopher Isaiah Berlin dubbed “negative liberty” in his famous 1958 lecture. The First Amendment’s instruction is clear: “No.”

And what does “no” mean? To preserve our democratic system and promote public debate, we must keep government officials’ hands out of the free-speech cookie jar. Indeed, almost all modern First Amendment jurisprudence is premised on this fundamental goal.

Thus, in a path-breaking 1964 decision in New York Times v. Sullivan, the United States Supreme Court reversed a libel judgment issued against a newspaper and several civil rights leaders. It was a case that stemmed from Alabama public officials commandeering of the state’s tort laws to bankrupt and punish critics of the governmental structure that maintained and preserved white supremacy in the South. In his opinion for the Court, Justice Brennan wrote that review was “required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a state’s power to award damages in a libel action brought by a public official against critics of his official conduct.”

In rejecting Alabama’s application of its traditional libel laws, the Court traced the history of seditious libel to the Sedition Act of 1798—an attempt by a declining political party (the Federalists, which would disappear within a generation) to ensconce themselves in power by insulating themselves from public criticism—noting that while the statute was “never tested in this Court, the attack upon its validity has carried the day in the court of history.” Constitutionalizing the common law of defamation to prevent government officials from blocking criticism of their state’s Jim Crow oligarchy, the Court ruled “that debate on public issues should be uninhibited, robust, and wide open.”

Power does not yield easily; thus, some powerful political figures resist a constitutional provision that endorses robust debates and unambiguously says “no” to penalizing critics of their power grabs and corruption. And, not surprisingly, many years after the Sullivan decision, our system of freedom of expression is again under attack.

For example, in 2016 then-presidential candidate Donald Trump announced: “I’m going to open up our libel laws, so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece, which is a total disgrace, or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

In his daily Twitter rampages, President Trump has attacked American journalism and adopted a Stalinist tool, calling the Washington Post, New York Times, CNN, and other media outlets doing serious reporting “enemies of the people.”

The challenges to First Amendment protection are also coming from within the judicial system. In February, a case involving a libel lawsuit against convicted sexual abuser Bill Cosby prompted Justice Thomas to issue an opinion attacking modern constitutional protections for freedom of the press. He claimed that “New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” He said: “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm.”

Law Day 2019 is themed “Free Speech, Free Press, Free Society.” As we confront possible government intervention to restrain and regulate social media companies because of algorithms promoting quality content and because Trump is unhappy that Twitter purged thousands of his bot followers, we should recognize that the simplest answer is still the best: