The Invisible Constitution in Comparative Perspective

Frankfurter, and Robert H. Jackson (Lanham, MD: Rowman & Littlefield Publishers, 1996), 

3; “Justice Black and the Bill of Rights” (1977) 9 Southwestern University Law Review 937, 938 

(transcript of CBS News Special, broadcast December 3, 1968, quoting Justice Black: “[w]ell, 

I’ll read you the part of the First Amendment that caused me to say there are absolutes in our 

Bill of Rights . . . Now, if a man were to say this to me out on the street, ‘Congress shall make 

no law respecting an establishment of religion’ – that’s the First Amendment – I would think: 

Amen, Congress should pass no law.”).

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Lawrence B. Solum

congressional powers, and to the Ninth Amendment (proposed and ratified at 

the same time as the First) that forbids constructions of the Constitution that 

deny or disparage rights retained by the people on the basis that other rights 

(including the freedom of speech) are enumerated. And the First Amendment 

was framed and ratified in a particular historical context, some of which was 

publicly shared by those who attended the Philadelphia convention, some by 

the state ratifying conventions, and some by “We the People,” the citizenry of 

the United States. This publicly available context of constitutional communi-

cation may have enriched the meaning of the phrase “freedom of speech” –  

giving relatively more clarity and determinacy to a phrase that would be highly 

underdeterminate considered out of context. This enriched meaning is the 

communicative content of the Free Speech Clause.

Now consider the legal content that is associated with the Free Speech 

Clause. Consider the example mentioned above: free speech doctrine is sub-

stantially more complex and rich than the communicative content conveyed 

by the text of the First Amendment – even taking contextual enrichment into 

account. The legal content of free speech doctrine includes a variety of com-

plex legal rules governing a wide variety of topics ranging from the regulation 

of billboards to campaign finance to child pornography on the Internet. Take 

billboard regulation as an example: the Supreme Court has articulated what 

it calls “the law of billboards”

16

 as a subset of free speech doctrine, but it is 

clearly the case that the full legal content of this body of rules is not contained 

in the communicative content of the Free Speech Clause. Obviously, the law 

of billboards is not in the semantic content of the First Amendment; neither 

the word billboard nor a synonym appears in the text. Almost as obviously, 

the precise content of the law of billboards is not a logical implication of the 

semantic content. And when we add the contribution made by the publicly 

available context of constitutional utterance, it is also obvious that the law of 

billboards was not in the communicative content of the First Amendment: 

competent speakers of English who were aware of the publicly available con-

text would not have thereby been able to predict the precise contours of the 

Supreme Court’s billboard doctrines.

The point is that context contributes to communicative content. So far, I 

have illustrated this point using judicially crafted constitutional doctrine, but 

the same phenomenon can occur in the political branches with constitutional 

constructions articulated explicitly (e.g., in opinion letters or preambles) or 

assumed implicitly, in both individual actions and settled practices.

16 

Metromedia Inc. v. City of San Diego, 453 U.S. 490, 501 (1981).

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