Photo Credit: Courtesy of Jimmy Emerson, DVM
By Adam Griffin; Staff Member (Vol. 16)
North Carolina’s First Amendment
Before the ratification of the Fourteenth Amendment, and before the Supreme Court doctrine of incorporation was created to impose the protections of the First Amendment against the State Governments, most State Constitutions had sister provisions that protected core First Amendment liberties. The existence of these provisions was a principal reason that the Federalist Framers of the Constitution argued against the need for a Federal Bill of Rights. So long as the States recognized these fundamental freedoms in their constitutions, and the people remained conscious of the natural existence of these rights, they would be protected by the structural limits on government and the censorial check on excesses of power imposed by an active, informed, and alert citizenry.
The North Carolina Constitution and Declaration of Rights provided such First Amendment protections for its citizens in separate clauses of its fundamental charter. The freedom of the press, the freedom of assembly and petition, the freedom of conscience, and the free exercise of religion, and prohibition on an establishment of religion were all rights protected in North Carolina’s original 1776 Constitution. Surprisingly to modern eyes, the original North Carolina State Constitution did not include an express provision protecting the freedom of speech.
Prior to the Civil War and implementation of the Supreme Court’s doctrine of incorporation, the First Amendment’s protections were significantly different than modern interpretations of the First Amendment’s provisions. For instance, Sir William Blackstone, an authority on the common law at the founding wrote, “The liberty of the press … consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”
When the provisions of the First Amendment were incorporated against the states, North Carolina’s state constitutional protections for such liberties were greatly overshadowed. State Constitutional protections were simply not much utilized after a series of Supreme Court cases beginning with the case of Gitlow v. New York in 1925, which cemented incorporation of the core protections of the First Amendment against the States, and clarified a robust conception of First Amendment liberty, which would protect citizens in each state from all levels of governmental action.
The modern North Carolina State Constitution had its last major update in 1971. Many of the original 1776 First Amendment-like provisions are retained with some updates in language more closely tracking the federal text. An express protection for the freedom of speech, absent in the original state constitution, was added to the free press clause; further conforming state constitutional language to federal constitution norms.
The incorporation of the First Amendment against the State of North Carolina, however, has opened up a narrow window of broader protections for core First Amendment rights on the rarely invoked basis of “adequate and independent state constitutional grounds.” In State v. Carter, the North Carolina Supreme Court found the State Constitution to provide broader protections for a fundamental right (in this case, the liberties guaranteed by the Fourth Amendment) than is offered by the incorporated Bill of Rights provision.
The Court in Carter writes that even when two provisions in the State and Federal constitution are identical, “we have the authority to construe our own constitution differently from the construction by the United States Supreme Court of the Federal Constitution, as long as our citizens are thereby accorded no lesser rights than they are guaranteed by the parallel federal provision.” The State Supreme Court has rarely used this adequate and independent state constitutional grounds power in interpreting declaration of rights provisions. But given the dual protections for core First Amendment freedoms in both the N.C. and U.S. constitutions, it is open for future State constructions of constitutional rights protections to broaden the sphere of protection beyond what is given by the Federal Bill of Rights.
The result of this history of “North Carolina’s First Amendment” is the recognition that core First Amendment liberties have been a hallmark of American constitutionalism from the beginning, even predating the U.S. Constitution. Though rights were often under-protected in the States before incorporation, most notably with regard to the natural rights of slaves and the liberties of African-Americans more generally, the Fourteenth Amendment sought to rectify the infringement of rights in the States. In so doing, the First Amendment became the floor of protection for its core liberties, but in North Carolina, “the ceiling is the roof” so to speak when it comes to First Amendment liberties. If the State Supreme Court decides the North Carolina Constitution provides greater protections for speech, press, conscience and the like, within its jurisdiction, than does the Federal Constitution, it is empowered to interpret its constitution for more liberty, but no less.
First Amendment Law Review 