Beyond the First Amendment: What the Evolution of Maryland\u27s Constitutional Free-Speech Guarantee Shows About Its Intended Breadth

Most Maryland lawyers are vaguely aware that Maryland\u27s Declaration of Rights contains its own guarantee of free speech that is worded differently from the First Amendment of the United States Constitution. What the Declaration of Rights actually says about free speech, however, and what can be inferred from its distinctive phrasing and legislative history, are not matters that have received much particularized attention. Decisions of Maryland\u27s courts routinely state that Article 40 of the Declaration of Rights - the principal source of state free-speech rights - is construed in pari materia with the First Amendment, which, as a practical matter, has entirely eclipsed Article 40 in safeguarding communicative rights in Maryland. Article 40 contains two principal clauses and one subordinate clause, which differ significantly from the First Amendment\u27s terse, single-clause prohibition against Congressional action infringing freedom of speech and related rights.\u27 Most other states have adopted similar, more detailed formulations of free-speech protection than the simpler federal guarantee.\u27 Displayed side by side for ease of comparison, the Maryland and federal provisions state, respectively, as follows