A Brief History of the Rights to Freedom of Speech and the Press
“Congress shall make no law… 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.”
The First Amendment of the United States Constitution is easy to read and straightforward. It simply says that federal statutes cannot limit the right of expression. Under the Fourteenth Amendment, neither can the individual states. Where did this right come from? Were the drafters of the Bill of Rights reacting to the tyranny of British rule? Why did this right need to be spelled out?
In the mid-Eighteenth Century, Sir William Blackstone, a British judge and jurist wrote a comprehensive treatise on British law, based on lectures he gave at Oxford University. In his book, Commentaries on the Law, he summarized the right to speech and freedom of the press, as it then existed in England. In earlier times, publishers were required to have a license from the government, which effectively gave the government power to regulate and censor what was printed. Later, publishers were subject to a special tax, the Stamp Act of 1712, rather than direct censorship. Blackstone reports that the press had freedom to publish without that fear, within bounds.
“Although blasphemous, immoral, treasonable, schismatical, seditious or scandalous libels are punishable by the English law… the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is essential to the nature of a free state; but this consists in laying no previous restraint upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public. To forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser as was formerly done, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government.”
As the thirteen states debated whether the new Constitution should be ratified, the notion emerged that the Constitution gave too much power to the federal government, and that people needed protection from that power. Various state legislative bodies proposed amendments, which were forerunners of the current Bill of Rights (the first ten amendments to the Constitution). One of the proposed amendments from the Virginia Constitutional Convention read:
“[T]he people have the right to freedom of speech, and of writing and publishing their sentiments; that the freedom of press is one of the greatest bulwarks of liberty, and ought not be violated.”
The Pennsylvania Constitution explicitly protected freedom of speech and freedom of the press:
“[T]he people have a right of Freedom of Speech, and of Writing and Publishing their sentiments, therefore the Freedom of the Press ought not be restrained.”
Thus people were concerned that, if they ratified the United States Constitution, they would be giving up the protections of their state Constitutions. A pamphlet from Boston and the minority of the Pennsylvania convention both described the freedom of press as the “scourge of tyrants.” Another pamphlet from one “John DeWitt” (a pen name) declaimed:
“Civil liberty, in all countries, hath been promoted by a free discussion of publick measures, and the conduct of publick men. The Freedom of the Press, hath, in consequence thereof, been esteemed as one of its safe guards. That freedom gives the right, at all times, to every citizen to lay his sentiments, in a decent manner, before the people. If he will take that trouble upon himself, whether they are in point or not, his countrymen are obliged to him for so doing; for, at least, they lead to an examination of the subject upon which he writes.”
Patrick Henry argued that England's unwritten Constitution protected the rights of British subjects better than the United States Constitution, without the Bill of Rights, protected the rights of its citizens:
“Here is a revolution as radical as that which separated us from Great Britain. It is as radical, if in this transition our rights and privileges are endangered, and the sovereignty of the States be relinquished: And cannot we plainly see, that this is actually the case? The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change so loudly talked of by some, and inconsiderately by others. Is this same relinquishment of rights worthy of freemen?… Is the relinquishment of the trial by jury, and the liberty of the press, necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty?… 23 years ago was I supposed a traitor to my country; I was then said to be a bane of sedition, because I supported the rights of my country… [Suspicion of governmental power] is a virtue, as long as its object is the preservation of the public good, as long it stays within proper bounds.”
But a proponent of the new Constitution, James Wilson, argued that the Constitution did not take away individual liberties:
“[I]t would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press, which has been a copious source of declamation and opposition-what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom?”
Alexander Hamilton, one of the authors of The Federalist Papers, also took the view that by agreeing to adopt the Constitution, people gave up none of their civil liberties. His analysis distinguishes between a bill of rights presented by subjects to their monarch, and a constitution founded by the people themselves.
“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was the MAGNA CARTA, obtained by the [English] barons, sword in hand, from King John… ” Such, also, was the Declaration of Right presented by the Lords and Commons [the two Houses of Parliament in Great Britain] to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing: and as they retain every thing they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution… ” Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than a constitution of government.”
Hamilton was just as emphatic about a declaration of the freedom of the press.
“What signifies a declaration, that ‘the liberty of the press shall be inviolably preserved?' What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it too impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and upon the general spirit of the people and of the government. And here, after all… must we seek for the only solid basis of our rights.”
In the end, the free press flourished in the early days of our nation. Alexis de Tocqueville, an assistant magistrate in France, went to the United States to study its penal system. He traveled throughout America in 1831 and was both amazed at and concerned about how free the press was. In his journal, which formed the basis of his best seller, Democracy in America, he made these several notes.
In a conversation with a Mr. Spencer, a lawyer from upstate New York who was also a member of Congress and a representative to the New York legislature, he asked, “What limits do you impose on [the freedom of the press]?” Mr. Spencer responded:
“We have a very simple principle in this matter. Everything that is a question of opinion is perfectly free. One could go to print daily in America saying that monarchy is the best of all forms of government. But when a paper publishes libellous facts, when it gratuitously suggests culpable motives, then it is prosecuted and generally punished with a heavy fine. I recently had experience of an example. At the time of the case in connection with the disappearance of [a member of the Masons, suspected of having been drowned in Lake Ontario by his fellow masons to prevent him from revealing Masonic secrets] a newspaper printed that the jurors had pronounced their verdict of guilty from motives of ‘party spirit.' I prosecuted the writer of the article and had him punished.”
DeTocqueville had a follow-up question: “What in your view is the way to diminish the power of the press?” Mr. Spencer replied:
“I am completely convinced that the most effective way is to increase the number of newspapers as much as possible and not to prosecute them except in extreme cases. Their power gets less as their number gets greater, a fact which experience has incontrovertibly proved to us… With us there are an immense number of factors dividing our interests. There is no great centre of activity; it is almost impossible to get public opinion excited over a large area… Another reason why the personal opinions of journalists carry very little weight is the bad use they made of them in the first years of Independence. It was then proved that most of them had been bought by England. Since then they have lost public confidence.”
While traveling through Kentucky, DeTocqueville, who was at heart a dedicated tourist, noted that citizens living in Kentucky were sophisticated thinkers rather than “rustic folk.”
“These men… belong to one of the most civilised and rational peoples in the world. Their manners have nothing of rustic naivete. The philosophic and argumentative spirit of the English is found there as in all America. There is an astonishing circulation of letters and newspapers among these savage woods… I do not think that in the most enlightened rural districts of France there is intellectual movement either so rapid or on such a scale as in this wilderness.”
DeTocqueville was, however, leery of the press's freedom. While he was reading a treatise on English common law, Kent's Commentaries, he wrote in the margin next to the principle that in England, proof of the truth was not permitted in defamation cases, “Controversial question in America. Strong tendency to permit proof. Freedom of the press too unlimited, breaking all bounds. Curious.”