Today is Constitution Day in the U.S., the 234th anniversary of the signing of the Constitution. Since that document includes a 1st Amendment, and since that amendment is important to writers, I thought I’d mark this anniversary.
The text is straightforward: “Congress shall make no law…abridging the freedom of speech…” Sounds simple, but over the centuries, lawyers and scholars have debated every word of that amendment, including ‘the.’
In theory, the 1st Amendment frees fiction writers to write about anything they want. That’s a good thing. Writers need not fear the government jailing or fining them for what they write.
In practice, the Supreme Court has imposed limits applicable to fiction writers:
- You may engage in political writing, unless it poses a “clear and present danger” of bringing about an evil that the Congress has a right to prevent. Over the years, the prohibitions have narrowed in favor of more freedom for the writer.
- If you’re a student in school, you’re subject to some limitations on what you can write about in a school-sponsored publication.
- You’re limited in the types of obscenity and pornography you can write about, but again, the prohibitions have narrowed in favor of the writer.
- You can’t defame, slander, or libel someone. The definitions of those have narrowed as well.
- You may not copy someone else’s writing and claim it as your own.
Some of the founders, including James Madison, at first objected to the inclusion of the 1st Amendment and the rest of the Bill of Rights, arguing that the Constitution already implied and contained these individual rights, that they required no separate enumeration.
In retrospect, it’s probably a good thing they ratified the Bill of Rights. Governments, by their very nature, grow and seek to restrict the freedom of individuals. Without a written and obvious restriction on governmental growth, the Supreme Court might have had a harder time digging ‘freedom of speech’ out of the basic Constitution’s text.
For now, you’re free to write just about anything, and that’s something to celebrate. Happy Anniversary, 1st Amendment! Though you’re old, a bit tattered, and under constant assault, you’re looking pretty good to—
Poseidon’s Scribe
