The Democratic First Amendment

Over the past several decades, the Supreme Court and most First Amendment scholars have taken the position that the primary reason why the First Amendment protects freedom of speech is to advance democratic self-governance. In this Article, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The fundamental problem is that the Court and, until recently, scholars have focused exclusively on the Religion Clauses and the Free Speech Clause. The rest of the First Amendment—the Press, Assembly, and Petition Clauses—might as well not exist.

The topic of this Article is the five rights—speech, press, assembly, association, and petition—that I call the Democratic First Amendment. I will argue that the Democratic First Amendment is best read to adopt a particular vision of citizenship, one associated with the Democratic Republican philosophy of Thomas Jefferson and his allies. Citizens, on this view, are meant to be active in a myriad of ways, to engage with and even challenge their elected representatives, and to develop and communicate their values and opinions jointly, through assemblies and associations. It stands in sharp contrast to the passive form of citizenship, limited to biennial voting, favored by Jefferson’s Federalist adversaries.

Each of the rights of the Democratic First Amendment, I show, advance this kind of democracy. More importantly, these rights are, to use the Supreme Court’s term, “cognate,” and must be exercised in combination to enable meaningful and active citizenship. The First Amendment, in short, is not just democratic, it is also kaleidoscopic.