The Dominant American View of Freedoms of Press and Speech, in the Decade Leading Up to Ratification of the Federal Bill of Rights

In the 1780s in America, the advocates of broad understandings of freedom of press and freedom of speech continued to argue, as “Junius Wilkes” did in 1782, that “[i]f a printer is liable to prosecution and restraint, for publishing pieces on public measures, conceived libellous, the liberty of the press is annihilated and ruined. . . . The danger is precisely the same to liberty, in punishing a person after the performance appears to the world, as in preventing its publication in the first instance. The doctrine of libels, is of pernicious consequence to the freedom of the press.” Many other essays in the 1780s showed the dominance of an expansive understanding of freedoms of press and speech, as did the declarations of rights of nine states. That was the context in which the First Amendment was adopted and ratified in 1789–1791. These conclusions about the prevalent and dominant understanding after the mid-1760s are flatly contrary to the narrow view of freedoms of press and speech stated by Blackstone and Mansfield, and restated by the neo-Blackstonians, who claim that the narrow understanding was not only predominant but exclusive through the ratification of the First Amendment and onward until 1798. This book’s conclusions are based on far more original source material than the neo-Blackstonians’ conclusions.

Introduction

The “father of the Bill of Rights,” James Madison, described the unqualified words protecting freedoms of speech and press as embodying a broad definition rather than a narrow definition of those liberties. Upon offering those provisions, he said that “freedom of the press and rights of conscience . . . are unguarded in the British constitution,” including the common law, and that “every government should be disarmed of powers which trench upon those particular rights.” In Madison’s draft and in the final First Amendment, each clause was worded to modify or to reject the English common law on point in order to provide for far greater protection of individual liberties; no clause was worded with the restrictions that the common law imposed. Was Madison right? Are freedoms of press and speech in the First Amendment broad or narrow protections?

Blackstone’s and Mansfield’s Narrow Liberties of Press and Speech, and Broad Crimes of Seditious Libel and Seditious Words

The narrow understanding of freedoms of press and speech, adopted by Sir William Blackstone and Lord Chief Justice Mansfield, defined those freedoms as no more than liberty from a government-issued license or other prior restraint, with no liberty from punishment of sentiments once printed or spoken. In doing that, the last volume of Blackstone’s Commentaries in 1769 summarized a narrow common law definition of freedoms of press and speech that did not exist in common law. Mansfield’s decisions introduced a similar definition into the common law for the first time the year after that. Besides describing a new definition as ancient, both Blackstone and Mansfield described the related framework for prosecuting sedition as being ancient and universally accepted, when in fact it was a collection of unique rules adopted and manufactured seventy years before and recently revised. Blackstone and Mansfield were not declaring ancient law but were creating new law.

Epilogue

A number of conundrums are explained by the fact that an expansive understanding of freedom of press and freedom of speech prevailed and became dominant in Britain and America after the mid-1760s, and are unsolved by those who claim that the narrow Blackstone-Mansfield definition of freedoms of press and speech was universally or generally accepted during the late eighteenth century. Those conundrums include why those freedoms would be defined as mere protection from licensing that ended nearly a century before, why there was a steady stream of essays championing a broad definition and opposing a narrow definition, why American colonists and English radical Whigs threatened with prosecution would advocate narrow instead of broad freedoms, why there was such a wide chasm between restrictive law and permissive practices of speech and press, why nine of the eleven new states that adopted new fundamental law found it necessary to protect freedom of press, why every one of those declarations of rights gave the broadest protection without express exceptions rather than using Blackstone’s language, why the federal Bill of Rights similarly used the broadest language and rejected common law limitations, as well as why Fox’s Libel Act was able to attract majority support in Parliament.

The Constitutional Understanding of Freedoms of Press and Speech, and of Seditious Libel, in Discussions of State and Federal Bills of Rights

As the Constitution was drafted and ratified, many antifederalists expressly feared and opposed the narrow Blackstone-Mansfield definition and approach to freedoms of press and speech, and federalists responding to them gave repeated assurances that the federal government had no power touching press and speech. That was true in both the newspaper debates and the constitutional ratification debates. As the Bill of Rights was adopted and ratified, the preponderance of people discussing seditious libel and seditious words in essays and in legislative settings saw a need for protecting press and speech from being prosecuted as seditious, and understood that an amendment securing freedoms of press and speech would do just that. Both the Senate and the House rejected proposed amendments that would have restricted the expansive words of the First Amendment by the common law of seditious libel. From all viewpoints, there was strong support for the broad language of the First Amendment.

The Prevailing Broad View by the Popular Party of Freedoms of Press and Speech, in the Pre-Revolutionary Decade Before the American States’ Declarations of Rights

After the colonial crisis erupted in 1765, the popular party quickly embraced expansive understandings and practices of freedoms of press and speech. John Adams deplored British threats as “impudent insinuations of slander and sedition” that showed “the jaws of power are always opened to devour . . . the freedom of thinking, speaking, and writing.” Son of Liberty and other essayists added that the crime of seditious libel, “this Star-Chamber trumpetry,” was “utterly subversive of the liberty of the press.” William Bollan, an American, published The Freedom of Speech and Writing on Public Affairs Considered, and similarly concluded that the crimes of seditious libel and seditious words were inconsistent with freedoms of press and speech.

Reasons for the Spread of Broad Views of Freedoms of Press and Speech in America, During and After the Colonial Crisis

Colonial leaders and newspaper editors came to care deeply about the breadth of freedoms of press and speech and the danger of prosecution of seditious libel, because they were repeatedly threatened with such prosecutions as they spoke and wrote critically of Britain’s actions. They became more likely to support broad freedoms, and less likely to support criminalization of seditious libel and words, as they perceived that those were political crimes and that they were the likely victims.

The Dominant British View of Freedoms of Press and Speech, in the Decade Before Fox’s Libel Act and America’s Bill of Rights

In the 1780s in Britain, a broad view of freedoms of press and speech had become the dominant one, outside crown-appointed judges and Parliament. In response, Lord Mansfield reiterated his view that “liberty of the press consists in printing without any previous license.” Defense counsel in that leading libel prosecution questioned “how can it be said that the press is free because every thing may be published without a previous license, if the publisher of the most meritorious work . . . may be prosecuted” after publishing and with heavily biased rules? A large chorus of other writers said more categorically that criminal “trials for libels . . . are Star-Chamber law, which this country should not countenance,” and were inconsistent with “liberty of the press.” That broad understanding of freedoms of press and speech, which had become dominant in the 1780s, was the context in which Fox’s Libel Act became law in 1792.

The Prevailing British View of Freedoms of Press and Speech, in the Decade Before the American Revolution and Declarations of Rights

The seditious libel prosecution of John Wilkes, beginning in 1763, showed more clearly than ever that the crimes of seditious libel and seditious words were political crimes, and provoked many in Britain to advocate a more robust concept of freedoms of press and speech, and to question the criminalization of criticism of government and officials. George Wallace, a Scottish lawyer (publishing in London in 1760), set the stage by rejecting limitations on freedoms of press and speech, and rejecting seditious libel as a crime, as others did thereafter. Spurred by the Wilkes prosecutions and then the Junius prosecutions in 1770, scores of writers advocated broad understandings of freedoms of press and speech, such as “the right of free enquiry and fair discussion,” and condemned the entirety or parts of the main restrictions (criminalization of seditious libels and words). The narrow understanding of Blackstone, even before he published it, was a minority understanding.

The Emerging Broad British View of Freedoms of Press and Speech, Before the Colonial Crisis

For a time after licensing expired in England in 1695, some people identified freedom of press narrowly as freedom from licensing, but a broader concept was spreading. For example, Young Gentleman in 1712 said that one side sought restraint “either by reviving the [Licensing] Act . . . or by some other law” (like taxes), while the other side advocated “unrestrain’d freedom of the press” based on “the liberty and property of the subject, which all Britains are so tender of” and which “no act of Parliament . . . can infringe.” Increasingly, freedoms of press and speech were described as something more than freedom from prior restraint, such as “freedom . . . to communicate his sentiments to the public,” a right to publish, liberty of inquiry, freedom from any restraint, or security from prosecution. Cato’s Letters in 1720 stressed that if officials were trustees for the people, discussion and criticism of their trusteeship was a right.