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The First Amendment says: “Congress shall make no law abridging freedom of speech or of the press.” Justice Hugo Black, who served on the Supreme Court from 1937 until his death in 1971, famously thought that “no law” meant no law. In Black’s view, the Amendment constrains congressional power absolutely. It does not matter whether government means to do good or ill; if a law abridges expression, not merely is it impermissible but it has actually gone beyond the reach of the lawmaker. Most Justices who have considered the language, however, have concluded that its meaning is more elastic than absolute. In this less literal approach, they have followed the lead of Oliver Wendell Holmes, who thought that the Constitution should be interpreted generally through a system of balances in which rights are measured against the necessity of laws. Congress is thus free to abridge freedom when, on balance, the need to do so is more important than the freedom itself. The trick is not to go too far. And who decides how far is too far? Well, Congress first, of course, but ultimately the Court. The rest of us are mainly bystanders.

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