Judge Peter B. Swann & Sarah Pook
The First Amendment to the United States Constitution provides unambiguously and without exception that “Congress shall make no law . . . abridging the freedom of speech.” Read literally, there is no room under the First Amendment for legislation protecting the public from any abuse of the right to free speech—including shouting “fire” in a crowded theater, child pornography, or manipulation of the public through vigorous disinformation campaigns. Yet before the First Amendment was incorporated against state law, the drafters of the Arizona Constitution took a more cautious approach: “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”