Unoriginal Misunderstanding

Press Freedom in Early America and Interpretation of the First Amendment

by Kenneth Shear (more about this book and author)

Part 4: Press Freedom in the Ratification Controversy

Subsection Links:

4.1. Anti-Federalist Fears of Criminal Libel Prosecutions

4.2 James Wilson’s Justification for Having No Press Freedom Guarantee in the Constitution; Objections of Pennsylvania Anti-Federalists

4.3. George Mason’s Demand for Protection from Federal Prosecutions for Seditious Writings; Other Virginia Voices

4.4. Other Anti-Federalist Opposition to the Constitution Based on Lack of a Press Freedom Guarantee

4.5. Alexander Hamilton’s Position in the Federalist No. 84.

4.1. Anti-Federalist Fears of Criminal Libel Prosecutions

The Constitution was proposed in 1787 without a Bill of Rights. The Constitutional Convention rejected without much argument a proposal to add a guarantee of press freedom.[162] During the ratification controversy that continued until mid-1788, there was much discussion about press freedom and in particular whether the new federal government would have power to punish writers for criminal libel and impose other measures that were seen as restrictive and whether a constitutional guarantee of press freedom should be added to the Constitution. This debate was not hypothetical. The law of seditious libel is political law. George Washington and others acknowledged civil unrest such as Shays’ Rebellion and smaller disorders in other states as an important reason many Federalists sought a stronger central government. The common law of seditious libel had been unenforceable in America for 50 years previously, but just prior to the ratification controversy, two states had made moves to revive it. It took only ten years after ratification of the Constitution for the federal Sedition Act of 1798 to be enacted, followed by a nationwide wave of prosecutions that destroyed opposition newspapers and imprisoned government opponents. This was precisely what many anti-Federalists feared and an important reason why they sought a press freedom guarantee.

For example, in 1788 one opponent of the Constitution published a bitterly satirical report from the future datelined 1796, telling of repressive seditious libel prosecutions against

[162] Emergence at 221, citing Farrand, M., Ed., The Records of the Federal Convention (1911) vol. 2 at p. 587-588

opponents of the new Federal government.[163] It turns out that the satirist was only off by two years in predicting the Sedition Act of 1798. Obviously, this commentator saw it as an issue in the ratification debate, whether prosecution of government opponents for seditious libel was going to be revived as a tool to enforce order and repress political dissidence.

4.2 James Wilson’s Justification for Having No Press Freedom Guarantee in the Constitution; Objections of Pennsylvania Anti-Federalists

When the Constitution was proposed without a guarantee of press freedom, the issue of criminal libel prosecutions came to the forefront for many anti-Federalists. The Pennsylvania ratifying convention met very early, and Pennsylvania became the second state to ratify the Constitution. James Wilson, a leading Federalist, made an early speech, asserting that there was no need for a guarantee of press freedom because the federal government would have no power over the press. In response, William Findley, a leading anti-Federalist wrote:

The Liberty of the Press is not secured, and the powers of congress are fully adequate to its destruction, as they are to have the trials of libels, or pretended libels against the United States….Mr. W[ilson] has given you no answer to these arguments.[164]

Another anti-Federalist asserted:

It is said in the 2d. section of the 3d. article of the Federal Plan: "the judicial power shall extend to ALL CASES in law and equity, arising under this constitution. It is very clear

[163] American Herald, Jan. 7, 1788, p.2

[164] “An Officer of the Late Continental Army” Independent Gazetteer, Nov. 6, 1787, reprinted in I Bailyn, B., ed. The Debate on the Constitution, vol. 1, p. 97, 98 (hereafter: “Debate on the Constitution”)and in Wakelyn, Jon, Ed., Birth of the Bill of Rights: Encyclopedia of the Antifederalists (2004) at 137-139 (hereafter: “Wakelyn”)

that under this clause, the tribunal of the United States, may claim a right to cognizance of all offenses against the general government, and libels will probably not be excluded. Nay, these offenses may by them be construed, or by law declared, misprision of treason, an offense which comes literally under their express jurisdiction. —Where then is the safety of our boasted liberty of the press.[165]

The thrust of many anti-Federalist complaints was that libel prosecutions by the federal government would destroy freedom of the press. Such complaints were reprinted in newspapers of many states during the ratification controversy, as seen below.

Wilson replied with a lawyer’s argument. He did not abandon his position that the federal government would not have power to prosecute people for criminal libel. He argued hypothetically that, even if the federal government did have power to punish criminal libel, the defendant would not be in a worse position under federal than under state law. The argument is worth noting because it seems to assert that libel law may be consistent with press freedom and because Levy attaches a great deal of importance to it. Wilson asserted:

I presume it was not in the view of the honorable gentleman to say that there is no such thing as a libel, or that the writers of such ought not to be punished. The idea of liberty of the press is not carried so far as this in any country —what is meant by liberty of the press is that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character and property of the individual.

With regard to attacks upon the public, the mode of proceeding is by a prosecution. ... Now, Sir, if this libel is to be tried, it must be tried where the

[165] “A Democratic Federalist”, Pennsylvania Herald, Oct. 17, 1787, reprinted in Debate on the Constitution, vol. 1, p. 70, 71.

offence was committed; for under this Constitution, as declared in the second section of the third article, the trial must be held in the State; therefore, on this occasion it must be tried where it was published, if the indictment was for publishing; and it must be tried likewise by a jury of the state. Now I would ask, is the person prosecuted in a worse situation under the general government, even if it had the power to make laws on the subject, than he is at present under state government?[166]

Wilson’s argument began with truisms but rapidly moved to rather extreme assertions. Who could disagree that there is such thing as a libel or that the writers of libels ought not be punished in some way? Libel was (and still is) a recognized legal category. Indeed it was widely recognized then as now that civil lawsuits for libel, at least in cases of false and malicious writings that caused actual damages, were not inconsistent with press freedom. Proceeding from this premise, Wilson went on to define liberty of the press in a very restrictive way as nothing but absence of prior restraint but with criminal punishment of “every author” who “attacks the security or welfare of the government.” This position went beyond even British common law doctrines that recognized that freedom of the press required that at least some critical writings about the government must be allowed.

Every serious thinker on the subject of press freedom in the late eighteenth century recognized that press freedom meant more than absence of prior restraint. The difference between more and less libertarian thinkers related to how much the government’s power needed to be restricted. (For example, was it adequate to modify criminal libel law to make truth a defense, or should punishment be limited to overt acts?) The position taken by Wilson at the Pennsylvania convention, if meant literally, would have been a grossly inaccurate statement of the common law.. Wilson, one of the most accomplished American lawyers of his day, was not

[166] Wilson, James, Speech on the Constitution, Dec. 1, 1787, reprinted in Bailyn, Bernard, Ed., I The Debate on the Constitution, vol. 1, p. 820, 826-7

explicating legal standards, however. He was making a political argument for ratification of the Constitution without a free press guarantee. His argument failed.

Levy makes Wilson’s speech a centerpiece of his argument that the framers of the First Amendment did not intend to abolish the common law of seditious libel, but Levy fails to carefully parse Wilson’s argument. Levy asserts that Wilson supported the “Blackstonian” approach to press freedom, that is, freedom of the press means absence of prior restraint but punishment for writings found by the court to have a bad tendency to stir up too much disaffection with the government.[167] This misrepresents Wilson’s legal position on the criminal libel issue. In lectures delivered in 1790 and 1791 to law students,[168] Wilson made clear that he was much more libertarian than Blackstone and did not believe that prosecutions based merely on supposed bad tendency of writings would justify libel charges. In his lectures on libel law, Wilson asserted that the British common law improperly restricted intellectual freedom.[169]

With regard to the law of libel and freedom of the press, Wilson explained, Blackstone’s “very principle was mistaken” because Blackstone erroneously classifying libel as an offense against public peace, when libel was really an offence against “character” or reputation, not against the public peace. Thus, in Wilson’s view, actual injury to a victim of the offence would need to be shown for a prosecution to be valid, for “if no injury has been sustained, no foundation has been laid for a crime”. In other words, writings could not be punished based on a supposed bad tendency to stir up disaffection; actual injury, not just a tendency needed to be proven. From this perspective Wilson’s view of libel is therefore closer to the overt acts test than to Blackstone. Wilson did not believe in punishing writings because of their tendency, but

[167]Emergence 204-5.

[168] Wilson died in 1798. His lectures were published posthumously by his son in 1804, but the lectures provide Wilson’s understanding of libel law and press freedom only a few years after his speech to the Pennsylvania ratifying convention.

[169] II Works of James Wilson at 392

because the writings caused injury.[170] In cases for seditious libel this would mean that some actual injury to the government would need to be shown, not just that the writing referred to the government unfavorably.

Taken literally and out of context, Wilson’s statement to the Pennsylvania ratifying convention seems even more restrictive than Blackstone, but history is not just a matter of reading the words of documents literally from today’s perspective. Any fair treatment of history puts documents in context and includes some attempt to evaluate their significance and importance. The purpose of Wilson’s speech in the Pennsylvania ratifying convention was not to define press freedom but to argue that no guarantee was needed in the federal constitution. Wilson’s main point was that defendants would be in no worse position under federal law than they would be under state law if prosecuted for libel, because the trial of a federal case would have to take place in the state where the material was published with a local jury. But in all of the states except Pennsylvania and Massachusetts, the common law of seditious libel had been a dead letter for more than 50 years after Zenger’s case, and the law was far from settled in Massachusetts or Pennsylvania where political leaders such as Mayhew, John Adams, Jefferson, and Richard Price had defined press freedom much more broadly. Wilson’s law lectures make it clear that he was not referring to Blackstone when he said that the law of libel was everywhere accepted, but to some more libertarian formulation of libel law. [171]

[170] Wilson appears to have felt strongly that libels which did in fact cause actual damage to reputation should be aggressively prosecuted. See Rosenberg, Protecting the Best Men at 66-67.

[171] Levy does very briefly mention Wilson’s 1791 lectures on the law (Emergence at 212), but Levy totally ignores Wilson’s assertion that the key error in Blackstone was the requirement that actual injury be proven in a libel case, not just bad tendency of the publication. As noted above, Wilson’s discussion of this point shows Wilson to be anything but a Blackstonian on the free press issue. The Pennsylvania constitution was rewritten by Wilson and others in 1790 to provide “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” This provision does not say what an “abuse” of press freedom would be, and certainly does not say that “abuse” would include political writings with a “bad tendency.” Indeed, the actual words of Pennsylvania constitution of 1790 can be interpreted consistently with an “overt acts” test for “abuse” of press freedom. Or, the words themselves could be interpreted more narrowly. Although both narrow and broad interpretations for press freedom had support in Pennsylvania, as shown by the controversy over the Oswald case, discussed above, nevertheless, Levy asserts that the 1790 Pennsylvania constitutional free press clause embodied the Blackstonian concept of seditious libel, modified to allow truth as a defense and to allow juries to decide whether the writing was libelous. To bolster this interpretation, Levy misquotes Wilson as stating that the Pennsylvania constitutional provision is “consistent in my opinion with the true principles of the common law.” Emergence at 212. Here again, Levy has taken a snippet of Wilson’s lecture out of context. The full quotation is as follows: “The constitution of Pennsylvania has put this matter upon an explicit footing, consonant, or nearly consonant in my opinion, to the true principles of the common law: ‘in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.’” Wilson was not talking about truth as a defense. In this very same lecture Wilson declared that Blackstone was fundamentally wrong and that actual injury was an element of any libel case under the true principles of the common law. Levy goes quotes a 1797 grand jury charge by Judge McKean (who consistently did press for a Blackstonian interpretation of press freedom) as evidence of what Wilson intended when drafting the Pennsylvania constitution in 1790. Emergence at 213. This begs the question of whether the 1790 Pennsylvania constitution was meant to be consistent with Wilson’s law lectures or whether McKean’s narrower view that publications could be criminal based on a “bad tendency.”

Levy further asserts that “No one at the Pennsylvania convention essayed to deny Wilson’s exposition of the law.” In actuality, anti-Federalists at the Pennsylvania convention claimed repeatedly that criminal libel prosecutions would violate press freedom. In addition to the statements quoted above, William Smilie, an anti-Federalist leader, argued, “Suppose Congress to pass an act for punishment of libels and restrain the liberty of the press, for they are warranted to do this. What security would a printer have, tried in one of their courts?”[172] Smilie did not agree that punishment of libels was consistent with press freedom. Levy also omits to mention the anonymous Pennsylvania Federalist who wrote responding to the anti-Federalist claims,

[172] Emergence at p.240.

as the new Congress can only have the defined powers given, it was needless to say anything about liberty of the press….It is remarkable in this instance, that among all the cases to which the federal jurisdiction is to extend (Art. 3), not a word is said of “libels or pretended libels.” Indeed in this extensive continent and among these enlightened people no government whatever could control the press.[173]

This Federalist author did not agree with Wilson that criminal libel prosecutions were consistent with press freedom; rather, he argued that there was no mention of libels in the Constitution because it was recognized no government could control the press in a nation with such enlightened people. Unless the author was being disingenuous, the clear import of the argument is that libels violate press freedom. Levy is wrong to say that no one disagreed with Wilson or the idea of prosecuting libels during the Pennsylvania ratification process.

4.3. George Mason’s Demand for Protection from Federal Prosecutions for Seditious Writings; Other Virginia Voices

As the ratification debate moved into other states, anti-Federalists continued to object to the Constitution on grounds that it lacked a guarantee of press freedom. Specifically, anti-Federalists hammered at the issue of libel prosecutions to show that the Constitution would threaten popular liberties. In the Virginia ratifying convention, for example, George Mason objected:

Now, suppose oppressions should arise under this government, and any writer should dare to stand forth, and expose to the community at large the abuses of those power; could not Congress, under the idea of providing for the general welfare, and under their own construction, say that this was

[173] Carlisle Gazette 11-21-1787 p.3;

destroying the general peace, encouraging sedition, and poisoning the minds of the people? And could they not, in order to provide against this, lay a dangerous restriction on the press? Might they not even bring the trial of this restriction within the ten miles square, when there is no prohibition against it?[174]

Mason’s view was particularly important, because as a delegate to the Constitutional Convention he refused to sign the Constitution, and he said one of his reasons was the absence of a press freedom guarantee.[175] In the portion of his speech quoted above, he objected to writers being tried for “encouraging sedition,” that is, a seditious libel prosecution. (Mason, who was not a lawyer, did not use the legal label, “seditious libel,” but Mason’s meaning is clear.) But the whole thrust of his statement is that prosecuting people for written attacks on the government would violate press freedom. Mason therefore clearly opposed the whole basis of the common law of seditious libel.[176]

Mason’s argument is also important because it responded to the Federalist position that Congress had not been given power to make any law restraining press freedom. Mason found the source of this power in the Article I grant of Congressional to “exercise exclusive Legislation in all Cases whatsoever” in the District of Columbia (which Mason referred to as the “ten mile square”). Mason asserts that this exclusive jurisdiction of Congress would include the power to enact a criminal libel law effective for any publication circulated within the District of Columbia. This

[174] III Elliot’s Debates, 441-442 (1836)

[175] Mason, George “Objections to the Constitution” (1787) reprinted in Bailyn, B., ed., The Debate on the Constitution (1993), vol. 1 at 345, 348. See Emergence at 235.

[176] Nor was Mason the only voice in the Virginia ratifying convention to express this view; another Virginia anti-Federalist asserted in florid style, the federal government “will cause the scribes of the people to be brought bound into the distant land, where they assemble; and be there cast into prison, under the pretence of their having transcribed seditious papers against the King and the rulers. Virginia Independent Chronicle, 10/31/1787, quoted in Main, Jackson Turner, The Antifederalists (1961) at 160.

answered the Federalist claim that Congress would have no power to legislate regarding press freedom, as well as Wilson’s assertion that trial of writers for criminal libel would take place in their home states subject to local views on press freedom.

Levy was aware of Mason’s importance in the ratification controversy and of Mason’s concern about press freedom. Yet astoundingly^,Levy simply ignores Mason’s statement to the Virginia ratifying convention.[177]Levy asserts, “any free press clause would have appeased Mason, even one consonant with the common law” as expressed by Blackstone.[178] Thus, Levy ignores

[177] Levy seems to have studied the debates in the Virginia ratifying convention carefully, because he dug out a statement by George Nicholas, later an opponent of the Sedition Act, who argued “The liberty of the press is secured … In the time of King William, there passed an act for licensing the press. That was repealed. Since that time it has been looked on as safe.” Emergence at 252, quoting Paul L. Ford, ed., Pamphlets on the Constitution of the United States (Brooklyn, 1988), 361. Levy claims that this passage shows Nichols believed freedom of the press meant only absence of licensing. However, Nichols was not arguing about definitions of press freedom. He was arguing that no constitutional guarantee was needed to secure press freedom. In this context, Nichols explained that in England, after licensing was repealed, the press was looked on as safe from this restriction, because such a law would “irritate the nation”. Schwartz, ed., The Birth of the Bill of Rights, vol. 4 at 792 (1971) (reproducing debates in Virginia ratifying convention from June 10, 1788). Nichols did not say one way or the other whether he thought seditious libel prosecutions were consistent with press freedom. Just because he used the example of a licensing law to illustrate his belief that a legislature could be relied on to protect press freedom, that does not mean Nichols saw absence of licensing as the only issue of press freedom. Indeed, as Levy notes, Nichols later joined in claims that the Sedition Act of 1798 violated press freedom. In any event, Levy’s attention to Nichols brief statement makes it all the more puzzling that Levy would ignore Mason’s statement warning of prosecution of writers under the Constitution if it did not have a bill of rights.

[178] Emergence 235. Levy supports his claim by taking out of context Mason’s assertion that the people are not secured ‘even in the enjoyment of the benefits of the common law.” Mason, Objections to the Constitution”, October, 1787, reprinted in Bailyn, B., ed., The Debate on the Constitution vol. 1, p. 345, 346 (1993). There is nothing in this document to indicate that Mason was referring to Blackstone’s version of press freedom. The reference to the common law occurs in the first paragraph of the document with no reference to press freedom. Twelve paragraphs later, after discussing many other objections to the Constitution, Mason adds, “There is no declaration of any kind for preserving the liberty of the press…” Levy twists this statement to mean that Mason would have been satisfied with any kind of free press guarantee, and therefore that even Blackstone’s version would suffice (i.e., truth not a defense and the judge deciding whether the writing was a libel) . In context it is obvious that Mason was emphasizing that the Constitution lacked any protection for press freedom (as well as other rights), not that he would be satisfied with any guarantee, however weak or illiberal.

what Mason actually said and imputes to Mason a view that Mason never actually expressed.

4.4. Other Anti-Federalist Opposition to the Constitution Based on Lack of a Press Freedom Guarantee

Like Mason, many other anti-Federalists objected to the Constitution’s lack of a free press guarantee because they claimed it would open the door to seditious libel prosecutions. One anti-Federalist asserted in a critique that was reprinted by newspapers in several states:

Where is the liberty of press taken away? If Congress have a right to controul it, they may be said to have a right to take it away. Will not a United States Attorney have the power to prosecute any printer for a pretended libel against the United States? Will not a printer be triable for a pretended libel against any foreign minister or consul, or for a libel against any of the individual states, by a federal tribunal? Are not such prosecutions warranted by the following clause in the new constitution? “All controversies wherein the United States shall be a party, all cases affecting foreign ministers and consuls, and all controversies between a citizen and a state,” shall be cognizable before a federal tribunal. – Cannot congress by virtue of this clause, restrain all public information of mal-administration?[179]

[179] Boson Gazette, Dec. 3,.1787, p.2; New York Journal, Dec 12, 1787 p.2; Independent Gazetteer, Dec. 14, 1787, p.3; Cumberland Gazette, Dec. 27, 1787, p.1. The same argument is paraphrased in United States Chronicle, Dec. 13, 1787 p.2.

Obviously, the author opposed seditious libel prosecutions on grounds that they would take away liberty of press. Again, this is not a fully developed theory of press freedom, but the whole thrust of the objection is that freedom of the press would be violated by criminal libel prosecutions. Levy dismisses this objection on grounds that the author did not articulate a full theory of press freedom, ignoring the obvious thrust of the argument..

Press freedom became a central focus of anti-Federalists. A South Carolinian urged:

The conventional system has, in my opinion, but ONE GREAT and ESSENTIAL DEFECT in its frame; and it appears to me, that this very ESSENTIAL DEFECT was overlooked from DESIGN. This defect is, that THE SACRED LIBERTY OF THE PRESS remains without any constitutional federal protection so that should any citizen write, as he now has a right to do, against any unconstitutional or despotick exertion of the legislative, executive, or judicial powers (blended and complicated as they are) of the new Congress, or of their General President, the writer, as well as the printer (should he be base enough to betray the secrets of his business) becomes instantly amenable, not to the local laws of his own state, which have no cognizance of federal delinquencies, but to those of a partial and interested FEDERAL COURT, which, in this one point, has no law to restrict the TYRANNY of their sentence.[180]

This author claims that the federal government under the Constitution would violate press freedom by convicting writers of crimes for writings that attacked the government, that is, what the

[180] Independent Gazetteer, Dec. 14, 1787 p.2; Salem Mercury, Jan. 1, 1788, p.1. Incomplete versions of this report are found in the American Herald, Dec. 31, 1794, p.4 and New Hampshire Spy, Jan 1, 1788, p.79.

common law calls seditious libel. The author does not hedge. He does not say that such prosecutions would be permitted if truth were a defense or if the right to trial by jury were guaranteed. Levy, in surveying anti-Federalist writings, ignores this one, although it was published in several states.

In Massachusetts, an anti-Federalist pamphlet was published under the name “A Columbian Patriot.” It has been attributed to Mercy Warren or to Elbridge Gerry, who was the leader of the Massachusetts anti-Federalists.[181] (Gerry, like George Mason, was a delegate to the Constitutional Convention who refused to sign the Constitution.[182]) The pamphlet urged:

‘even sedition is not the most indubitable enemy to the publick welfare; but that its most dreadful foe is despotism, which always changes the character of nations for the worse, and is productive of nothing but vice....’ [Helvetius]

Self defense is a primary law of nature, which no subsequent law of society can abolish; this primaeval principle, the immediate gift of the Creator, obliges every one to remonstrate against the strides of ambition and a wanton lust of domination, and to resist the first approaches of tyranny, which at this day threaten to sweep away the rights for which the brave sons of America have fought ....
There is no security in the proffered system, either for the rights of conscience, or the liberty of the press: Despotism usually while it is gaining ground will suffer men to think, say, or write what they please; but when once established, if it is thought necessary to subserve the purposes of arbitrary power, the most unjust restrictions may take place in the first instance, and an imprimatur on the press in the next, may

[181] Wakelyn at 137 (identifying author as Warren); Pamphlets on the Constitution of the United States: Published During Its Discussion by the People, 1787-1788 (1899) (identifying author as Gerry)

[182] Emergence at 235. Levy asserts that Gerry did not publish his objections to the Constitution, but his name was associated with “A Columbian Patriot” even if it was Mercy Warren who may have actually written the tract.

silence the complaints, and forbid the most decent remonstrances of an injured and oppressed people.[183]

The Columbian Patriot objected that the Constitution lacked a press freedom guarantee but did not say what the standard for freedom of the press should be. The piece was a political essay, not a legal treatise, intended to drum up opposition to the Constitution on grounds that it would prevent people from speaking out against the government. After asserting that sedition is less dangerous than despotism, the piece condemned all restrictions that sought to quiet expressions of grievances by the people, citing Helvetius, the French philosopher, who urged that a good ruler would read all of the libels against him, not try to silence critics.[184] Columbian Patriot did not argue that some restrictions on the press should be allowed, or that people should be punished for publishing falsehood. He or she said, what was missing from the Constitution was a guarantee of press freedom to prevent the federal government from silencing expressions complaints and grievances of the people.

Levy quotes only a few lines from this pamphlet and claims that the author “accepted a printer’s responsibility to the law for indecent publications, presumably scurrilous, scandalous or seditious in character.”[185] The conclusion simply has no connection whatsoever to the content of the pamphlet which nowhere indicates approval for prosecution of printers for any type of writing. The whole tenor of the document is that

[183] "A Columbian Patriot," reprinted in Wakelyn, at 137-139. The pamphlet was also published in Independent Gazetteer (Philadelphia) Mar. 13, 1788 at p. 1.

[184] Helvetius, De L’esprit (1807) 299, 302 footnote. Helvetius also declared, “Not that I here vindicate libels, but flattery may lead a prince from the way of virtue while a libel may sometimes bring a tyrant into it. It is not often that by the freedom of speech the complaints of the oppressed can reach the throne.” The passage continues with the footnote, “It is not, says the poet Saadi, “the timid voices of ministers that ought to bring to the ears of kings the lamentations of the miserable; the cries of the people should pierce directly to the throne.” Id. at p. 1. Thus, Helvetius proposed that libels should be used by rulers to better govern, rather than throwing writers in jail.

[185] Emergence at 248

expressions of opposition to the government should be permitted. This only demonstrates once again how intent Levy is on drawing conclusions to support his case rather than carefully examining the historical record.

One of the clearest objections to seditious libel prosecutions came from an anti-Federalist, writing as “Confederationalist,” who wrote to answer Federalist claims that press freedom was not mentioned in the Constitution out of deference to state guarantees and that it was nevertheless an inherent political right. Confederationalist claimed that the supremacy clause would permit any state declarations of press freedom to be overridden by the federal government. He concluded:

If the liberty of the press be an inherent political right, let it be so declared, that no despot however great shall dare to gainsay it. If it is not so declared it may be denied. Declare it to be an inherent and political right, and that it ought to be held sacred, and we then shall be certain upon what ground we stand. When this declaration is made, let the attorney general, of the United States, file an information against me for a libel; I will carry that declaration in my hand, as my shield and my constitutional defense.[186]

Like many of the other anti-Federalists who objected to the lack of a press freedom guarantee, Confederationalist maintained that criminal libel prosecutions would violate press freedom, without defining what press freedom meant. Levy therefore asserts that Confederationalist and other anti-Federalists may have meant that freedom of the press merely would afford truth as a defense in a libel case.[187]But neither Confederationalist nor other anti-Federalist leaders said that. Rather anti-Federalists objected to federal power to prosecute people for criminal libel. In this respect

[186] Pennsylvania Herald, 10-27-1787 p.2; Cumberland Gazette, 11-30-1787, p.2; Salem Mercury, 12-4-1787, p.1

[187] Emergence at 240

they stood in the tradition of those who objected to common law doctrines criminalizing publication of documents based on bad tendency, such as Mayhew, Williams, Burgh, Price, Furneaux, and the young John Adams. Moreover they were in a tradition where no one had been prosecuted for criminal libel in America for over 50 years except in connection with Shay’s Rebellion, an actual armed insurrection. To read “truth as a defense” into the objections of Confederationalist and other anti-Federalists who demanded a free press guarantee is simply to put words in their mouths that they never said. When anti-Federalists invoked Zenger’s case, it was to assert that trial by jury (another right they asserted had been left out of the Constitution) was essential to protect the press – not to argue that truth should be a defense. [188]

4.5. Alexander Hamilton’s Position in the Federalist No. 84.

By mid-1788, demands for a free press guarantee to protect against criminal libel prosecutions had become so widespread during the ratification controversy that Federalists backed away from Wilson’s assertion that such prosecutions were permissible. A few months after Wilson’s speech to the Pennsylvania ratifying convention, Alexander Hamilton took a very different approach to the issue of press freedom in the Federalist Papers. Hamilton

[188] “Cincinnatus (Arthur Lee) in New York Journal, Nov. 17, 1787, cited in Emergence at 246. See also, Cornell, Saul, Anti-Federalism & the Dissenting Tradition in America, 1788-1828 (1999) at 125-6. Cornell makes the same mistake as Levy, asserting that the Zenger case stood for the proposition that truth should be allowed as a defense in a seditious libel case – a proposition that Zenger’s attorney and backers did not agree with. As noted above, after ratification of the Constitution Jefferson sent a letter to Madison, urging that press freedom be guaranteed except for publication of false facts showing specific sorts of actual damage. See Emergence at 251 and text at footnote 155 above. Madison did not follow Jefferson’s advice. Levy seems to suggest that Jefferson’s proposal was narrower than the common law doctrine of seditious libel modified to allow truth as a defense, but Jefferson would have left the burden of proof on the prosecution to show falsity of the publication and in addition to prove actual injury from the statement, a far more libertarian position than a common law libel prosecution where only some bad tendency of the publication would need to be proven.

avoided any mention at all of libel prosecutions. Rather, Hamilton argued,

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. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers by the indulgence of an injudicious zeal for bills of rights.

On the subject of the liberty of the press, as much has been said, I cannot forbear adding a remark or two: In the first place, I observe, that there is not a syllable concerning it in the constitution of this state; and in the next, I contend, that whatever has been said about it in that of any other state amounts to nothing. 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 to be 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 on the general spirit of the people and of the government. And here, after all, as intimated

upon another occasion, must we seek for the only solid basis of all our rights.[189]

Hamilton restated the argument that there was no need for a press freedom guarantee under the Constitution because the federal government had no power over the press. Moreover, asserted Hamilton, a guarantee of press freedom might have the opposite effect by giving those who might wish to “usurp” such power a “plausible pretence.” Hamilton wrote here as if he opposed the doctrine of “constructive powers,” that is, the expansion of federal powers to include not only those expressly granted under the Constitution but also other implied powers.

Hamilton certainly did not truly oppose the doctrine of constructive powers. To the contrary, he was its greatest proponent. In 1791, less than three years after the publication of the Federalist Papers, Hamilton presented his classic argument that the “necessary and proper” clause of Article I of the Constitution gave the federal government power to do anything “requisite and fairly applicable” to any of the specific enumerated areas of federal control.[190] Hamilton’s powerful argument became a bedrock of American Constitutional law and theory

Having argued against a free speech guarantee on grounds that it might be used by proponents of implied powers to read some power over the press into the Constitution, Hamilton went on in Federalist No. 84 to assert that a guarantee of press freedom “amounts to nothing” because freedom of the press could not be defined precisely enough to prevent evasion of the guarantee. The argument seems unworthy of the usually incisive Hamilton, a lawyer, who surely did not actually believe that the legal principle of press freedom lacked meaning just because the concept might be hard to define.

[189] Federalist Papers No. 84 (1788) (footnote omitted). The footnote argues that the power to tax the press would not be a tool to restrict it, because public opinion would prevent oppressive taxation. Hamilton reiterates in the footnote that public opinion, not paper guarantees of its freedom, would protect the press.

[190] Works of Alexander Hamilton Vol. IV, p. 104, reprinted in Commager, ed., Documents of American History (1958) at 156; Elkins, Stanley, and McKitrick, Eric, The Age of Federalism 1993 at 232-33.

Why would Hamilton take this weak position that press freedom could not be defined, rather than maintain the position taken by his Federalist ally James Wilson, a few months earlier, that freedom of the press did permit libel prosecutions? Hamilton does not appear to have discussed this point in his writings, but the political context provides some indications of his motivation. In the months between Wilson’s speech and the publication of the Federalist Papers, it had become apparent that Wilson had made a political miscalculation by asserting the libel prosecutions should be allowed, because the danger of libel prosecutions under the federal government became an effective rallying point for anti-Federalists.[191] Hamilton, a Federalist leader, was surely aware of Wilson’s position and backed off.

Hamilton supported the use of seditious libel prosecutions to curb opposition to the government, as shown by his effort, discussed below, to instigate prosecution of government opponents only three years after the publication of The Federalist Papers.[192] Although Hamilton therefore appears to have agreed with Wilson’s assertion in the Pennsylvania convention that seditious libel prosecutions did not violate freedom of the press, Hamilton did not publicly support Wilson’s position in the Federalist papers. Instead, he tried to avoid the issue by dismissing the whole idea of legal protection for press freedom, urging that this must depend on the even more vague “general spirit of the people and the government”. Hamilton did not address the obvious question what the spirit of the people and government would be protecting, if freedom of the press were not a meaningful concept in the first place. If as Levy argues, the common law doctrine of seditious libel was generally accepted by Federalists and anti-Federalists alike, why would Hamilton argue that freedom of the press was undefinable? Levy provides no answer to this question, because Levy simply ignores this part of what Hamilton said. Levy does discuss Federalist No. 84, but he mentions only Hamilton’s claim that the federal government would have no power over the press,

[191] Main, Jackson Turner, The Anti-Federalists at p. 160-161.

[192] See text at footnotes 202-205 below.

without any mention at all of Hamilton’s strange claim that liberty of the press is undefinable.[193]

Hamilton’s argument in the Federalist Papers seems to show that, by the end of the ratification controversy, even Federalist leaders who did not think seditious libel prosecutions violated press freedom were avoiding that position. The anti-Federalists had made their point: a free press guarantee was needed to protect people against prosecution by the federal government for libels. This was one of several issues that anti-Federalists hammered away at. But it was an issue that received much attention during the debate. Ultimately, ratification of the constitution could only be achieved in states such as Massachusetts, New York, Maryland and Virginia, based on a compromise that involved a Federalist promise to add a bill of rights after ratification including press freedom. [194]

[193] Emergence at 225.

[194] The promise involved several states adding recommended amendments, which included several versions of a free press guarantee. Emergence at 253

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