About that word ‘abridging’ in the First Amendment …

Thursday, May 1, 2008

Abridging. It’s an old-fashioned word. It derives from a Middle English word (meaning deprive) and before that from Old French (abbreviate), and before that from Latin (cut short). For example, think of when a book or story is abbreviated — cutting short its narrative and depriving the reader of the complete message. It was a word used by our Founders, but not those who drafted the Declaration of Independence or the Constitution of 1787 or even the early state declarations of rights. It made its American debut in the First Amendment: “Congress shall make no law … 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.”

So why that word? Why not other words like “respecting” (as in the establishment clause), or “prohibiting” (as in the free-exercise clause), or the “ing” form of “restrained” (as used in the 1776 Virginia Declaration of Rights) or “deprived” (as used in James Madison’s June 8, 1789, proposal to the House) or “infringed” (as used in a July 28, 1789, House Committee report)? Well, it’s hard to say. The surviving historical records reveal little, Supreme Court decisions say nothing, and scholarship on the matter is meager. And though the word is commonplace in constitutional parlance, it is nonetheless one about which we are never quite sure of its meaning.

Etymologically speaking, abridging is when someone else, particularly the government, cuts off what we say or write. To abridge is to abbreviate, to command brevity. Such a command means that a censor — one who scrutinizes a work for objectionable content — can shorten any message by deleting as much as he wishes. Constitutionally speaking, all of this is abhorrent because we should be able to speak our minds uninterrupted. Thus, no “previous restraints” on freedom of speech or of the press.

By this logic, to permit the government to abridge expression is to allow for the perpetuation of half-truths. One only gets that side of the truth that the government wants us to hear or read or see. In the name of censorial brevity, the “whole truth” is not permitted and neither is the “full story” or the “uncut” movie. Censors fear the specter of the abundance of unabridged communicative liberty.

When the Federal Communications Commission prohibits, during specified hours, the reading of the unedited version of Allen Ginsberg’s poem “Howl” on the radio, or bans the broadcast of the uncensored “Sopranos” on television, it is surely “abridging” our freedom of expression, even if our Supreme Court mistakenly declares otherwise. So, too, when Congress restricts campaign contributions by permitting citizens and corporations to give some money but not the full amount they desire to give to a candidate or cause to show their support. And when the National Park Service allows some people to assemble at the inaugural parade but not others, because of the content of their messages, it abridges the First Amendment by depriving them and us of a full array of viewpoints. In this sense, “viewpoint discrimination” is necessarily linked to “abridging.”

Of course, there is more to the meaning of “abridging” — that trigger word in the First Amendment” — than what I have sketched here. Our usage of the term has developed in wide-ranging ways over the centuries. And it must be noted that the word “abridged” is found in the 14th (equal protection, privilege and immunities, due process), 15th (race and voting), 19th (women’s suffrage), 24th (poll taxes), and in the 26th (18-year-old vote) amendments to our Constitution. So “abridging” or “abridged” has multiple meanings both under the First Amendment and under other amendments.

Still, we should remember that old-fashioned Madisonian idea that equated abridging with government attempts to “cut short” the many messages of “We the People.” Half-truths, condensed government records, redacted judicial documents, abridged literary works, and word-sanitized TV programming are antithetical to a vibrant First Amendment. They trade government-ordered brevity for the fullness of freedom.