The Federalist Blog

Summary: Freedom of Speech or of the Press can be defined as freedom from government using seditious libel law to prevent any public discussion critical of government affairs or policies. Under common law, people had to be careful of any criticism they wrote or said against government or its officials out of fear of being charged with a seditious crime where truth would be of no defense.

Before discussing the meaning of the words “freedom of speech, or of the press” as established under early American law, we should first understand why these words are found under the United States Constitution. Mr. Madison explained in 1799, “Without tracing farther the evidence on this subject, it would seem scarcely possible to doubt, that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood; and that the [first] amendment was intended as a positive and absolute reservation of it.” Alexander Hamilton argues in Federalist No. 84 why such an amendment does not belong under the federal constitution:

Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government.

As one might suppose from the above, Congress would be just as powerless in abridging the freedom of speech or the press without the First Amendment; and the First Amendment served only as a declaration that no such power had been vested with Congress over speech or the press.

Framer James Wilson before the Pennsylvania Convention to Ratify the Constitution of the United States in 1787 said he would have no further remarks on the freedom of the press “until it is shown that Congress have any power whatsoever to interfere with it, by licensing it to declaring what shall be a libel.”

The biggest modern error of understanding freedom of speech comes from viewing it as a right to be heard (or even seen) or the unfettered right to gain information that might later be used to create a public discussion.

Freedom of speech and of the press served one purpose in America: To remove the fear of the common law doctrine of seditious libel so citizens could freely speak or publish without license their grievances against public policy or conduct of public officials. One of the distasteful things found under the common law was the government practice of criminalizing or shielding itself against potential publication of criticism it felt made people dissatisfied with their government or government established religion.

Thus, freedom of speech or the press is not a positive right directed at individuals to speak or publish but a barrier on the legislature or executive from punishing public scrutiny of government acts or policies.

Seditious libel (or criminal libel as it was sometimes called) was generally defined as “the intentional publication, without lawful excuse or justification, of written blame of any public man, or of the law, or of any institution established by law.” (Stephen, History of the Criminal Law)

In England, it could be dangerous to criticize government, or peaceably assemble or petition government for redress of grievances because anything one might speak or write could end up being used against them under the charge of seditious libel where truth would be of no defense.

In 1808 for example, the British newspaper publisher, John Drakard, was indicted over an article questioning military flogging, and the jury had been instructed that the military establishment had been injured and “it was not to be permitted to any man to make the people dissatisfied with the Government under which he lives.” Henry VIII once made it a high treason crime to suggest his marriage to Anne of Cleves was valid even though it was the truth.

Parliament’s famous licensing order of 1643 made clear it was the “defamation of religion and government” that was not to be tolerated. While one could still find themselves in a world of trouble for defamation of religion in the colonies and States, there was no license required for publication or laws of seditious libel for public discussion of government affairs.

How can we know for sure the freedom of speech means freedom from seditious libel? All early American laws over speech and the press dealt solely with breaches of the peace or public morality (blasphemy, obscenity, profanity, etc.), but never laws criminalizing public discussion of government affairs. In other words, the common law doctrine of seditious libel was absent from American laws, while general public restrictions over speech or the press existed.

Benjamin Franklin, writing in The Pennsylvania Gazette, April 8, 1736, wrote of the American doctrine behind freedom of speech and of the press:

Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates.

James Madison in 1799 wrote, “In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men of every description which has not been confined to the strict limits of the common law.”

The Democratic-Republican caucus included the following in their 1800 platform: “An inviolable preservation of the Federal constitution, according to the true sense in which it was adopted by the states. … Freedom of speech and the press; and opposition, therefore, to all violations of the Constitution, to silence, by force, and not by reason, the complaints or criticisms, just or unjust, of our citizens against the conduct of their public agents.”

Generally speaking, all State constitutions or laws stipulated along the lines that the “press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity,” and “in prosecutions for publications investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may he given in evidence.”

Other common expression of the freedom found were, “No law shall ever be passed to restrain or abridge the liberty of speech or of the press; but every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of such right.”

If freedom of speech or of the press alone was understood to mean the liberty to freely write or speak whatever one wishes then there can be no purpose for the additional declaration that says persons may also “freely speak, write, and publish his sentiments on all subjects.” It is too clear freedom of speech and of the press had specific meaning and that meaning could only have been freedom from seditious libel. Thomas Cooley hit the ball out of park when he wrote of the freedom found under American constitutions:

The mere exemption from previous restraints (Blackstonian theory) cannot be all that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he pleased, the public authorities might nevertheless punish him for harmless publications, … Their purpose (of the free-speech clauses) has evidently been to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them. … The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.

Additionally, all State constitutional provisions guaranteeing the freedom of speech or press provided for the abuse of this right to be excluded from the freedom. What this means is people never had a constitutional right to ignore laws that defined the abuse of the freedom. While there was never any justification for criminalizing or licensing the discussion of public affairs, everything outside of this was open to public restrictions for purposes of preventing crime, breach of peace, or enforcing public morality.

Under the federal constitution, there is no provision for making anyone responsible for the abuse for the simple reason no power over the subject was delegated to the central government to exercise. As already pointed out, the purpose behind the federal bill of rights was to make clear Congress had no powers over such matters rather than to extend rights to citizens of the States.

It should be apparent now how States could prohibit “books or other publications of a sectarian infidel or immoral character” from being distributed in any common school, or prohibit public discussion of acts of sexual gratification, or even solicitation for donations on public property without permit. All these restrictions have nothing to do with preventing public discussion of government affairs or concerns.

The great advantage of adhering to the custom and practice of constitutional provisions is that it does not act to force courts to invent “exceptions” to either sanction a law or rule the law unconstitutional.

The court in In re Macknight, II Mont. 126 (1891) got it right when it declared:

What was the purpose of this constitutional guarantee (freedom of speech and press)? Was it to grant freedom to ordinary speech and publication which could excite the resentment of no one? If that was the purpose, then it would be as needful to put into the Constitution a provision that people may freely walk the streets quietly and peaceably . . . And so the history of the struggle for the establishment of the principle of freedom of speech and press shows that it was not ordinary talk and publication, which was to be disenthralled from censorship, suppression and punishment. It was in a large degree a species of talk and publication which had been found distasteful to governmental powers and agencies.

Trial of John Peter Zenger

The liberty of speech or of the press in this country can be said to have been born in the year 1735 in the colony of New York. The story begins on November 5, 1733 when John Peter Zenger published his first issue of the Weekly Journal that included this criticism:

[T]he sheriff was deaf to all that could be alleged on that (Quaker) side; and notwithstanding that he was told by both the late Chief Justice and James Alexander, one of His Majesty’s Council and counsellor-at-law, and by one William Smith, counsellor-at-law, that such a procedure [disqualifying the Quakers for affirming rather than swearing] was contrary to law and a violent attempt upon the liberties of the people, he still persisted in refusing the said Quakers to vote….

Governor Crosby wanted Zenger charged with seditious libel but found it difficult to obtain a grand jury indictment against him. To get around this obstacle Crosby instructed his attorney general to file a formal accusation of a criminal offense before two justices. This in return led to a bench warrant and arrest of Zenger.

The trial opened on August 4, 1735 on the main floor of New York’s City Hall with Attorney General Bradley’s reading of the information filed against Zenger. Bradley told jurors that Zenger, “being a seditious person and a frequent printer and publisher of false news and seditious libels” had “wickedly and maliciously” devised to “traduce, scandalize, and vilify” Governor Cosby and his ministers. Bradley said that “Libeling has always been discouraged as a thing that tends to create differences among men, ill blood among the people, and oftentimes great bloodshed between the party libeling and the party libeled.” (Linder, The Trial of John Peter Zenger (2001))

Additionally, Bradley explained truth was of no defense for seditious libel under state law while Zenger’s attorney argued the law should not be interpreted to prohibit “the just complaints of a number of men who suffer under a bad administration.” The judge instructed the jury the “law is clear that you cannot justify a libel,” and the “jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.”

With law and precedent squarely against him, the jury nonetheless found Zenger not guilty and the beginning of public opposition to trials of seditious libel had been established. Gouverneur Morris (served on the committee of five responsible for the final drafting of the Constitution) would write a half-century later: “The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America.”

With this historical understanding of free speech our first analysis of what might constitute a violation of the clause will always be to first discover whether government has made it a libel to openly discuss/criticize the affairs of government or government officials? If the answer is no then there is no infringement under the clause.

Additionally, it is rather absurd to argue a school can violate someone’s freedom of speech when no school has any municipal authority to declare arbitrarily what shall be a libel against it and criminally punish such libel.

Finally, opposition to speech or press laws should be taken up with the people’s representatives and not through lawsuits, which often tends to only uproot the great liberty of the people to govern themselves under their own chosen laws and sense of norms.