Alliance Defending Freedom reached out to ACLL, asking if we would be willing to submit an amicus brief discussing the text, history, and original meaning of the Alabama Constitution’s Free Speech Clause. Article I, Section 4, of the Alabama Constitution provides: “That no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” In 2021, Justice Mitchell, joined by Chief Justice Parker, issued a special writing urging lawyers to brief the court on the original public meaning of the Alabama Constitution. Seeing the opportunity, ACLL took up the justices’ call. 

The original free speech clause of the 1819 Alabama Constitution was based on the Pennsylvania Constitution of 1790, which in turn was based on the common-law rule of Sir William Blackstone. According to Blackstone, the freedom of speech and press was the freedom to speak or print what one pleased without getting the government’s permission first. Blackstone reasoned that the speaker could be held responsible for the abuse of that liberty through a defamation action if he went too far, but the freedom meant that one could speak or publish what he pleased without getting a license first. The Alabama Constitution of 1819 virtually adopted this rule and kept it consistent throughout its next four constitutions. In 1901, the framers made only one material change to the Free Speech Clause of the Alabama Constitution: It increased liberty by granting it to all people within the state, not just citizens. Thus, whatever the limits are of Alabama’s free speech provision, the one rule that was abundantly clear was freedom from prior restraints. 

In this regard, the Alabama Constitution protected more freedom for the YAL chapter than the Federal Free Speech Clause did. While the federal courts have usually done well to protect people against licensure requirements, the federal courts lately have been granting the government to impose prior restraints under the guise of time, place, and manner restrictions. This is how UAH could get to the point where they could consign student speech to a “free speech zone,” as if college students were not free to speak anywhere else on campus. But the Alabama Constitution is abundantly clear: no prior restraints on speech are tolerated at all. Thus, under the Alabama Constitution, the students of YAL are free to speak without getting UAH’s permission first.