The Supreme Court has reaffirmed a long-standing principle of American constitutional law: the Bill of Rights originally applied only to the federal government and did not limit state authority. The First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Under the original Constitution, state governments could enact laws restricting these rights without violating the First Amendment, unless their own state constitutions provided protections.

This framework changed with the ratification of the 14th Amendment in 1868. Senator Jacob Howard (R-Mich.), who introduced the amendment in 1866, explained that the "mass of privileges, immunities, and rights" secured by the Constitution did not originally restrain state legislation. Howard stated that the amendment's primary goal was "to restrict the power of the States and compel them at all times to respect these great fundamental guarantees."

James Madison, who announced the proposed constitutional amendments that became the Bill of Rights on June 8, 1789, warned that state governments were just as likely as the federal government to threaten these "invaluable privileges" and therefore needed to be "as cautiously guarded against."

Historical examples illustrate state-level restrictions on free speech. In 1831, the Georgia legislature authorized a $5,000 bounty to be paid by the Governor to anyone who arrested and prosecuted the editor or publisher of "the Liberator," or anyone circulating the paper within Georgia, under state law.

Madison's vision was for several parts of the Bill of Rights to apply equally to both federal and state governments, a goal only realized after the 14th Amendment's ratification.

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