Unoriginal Misunderstanding

proceeding when he refused to answer their charges against him.

The prosecutions, rather than suppressing opposition to the colonial government, generated more. McDougall's case became a cause célèbre for the revolutionary movement, which claimed that the "star chamber" doctrine of seditious libel was being used to deny fundamental rights of the people.[86] In The Massachusetts Spy, an anonymous piece signed “Centinel” denied the government had power to prosecute Thomas, asserting that the only acceptable legal proceeding against a libel on a government official was a civil action for damages, not a criminal prosecution.  Drawing on the political theories expounded by American libertarians like Mayhew and John Adams, Centinel explained, "[T]he reason seems to be founded on the maxims of free government. It supposes that the rulers are servants of the people, and that the people for whom they were created, had the right to call them to account."[87] 

3.2  Declaration 8 of the First Continental Congress, Denying British Authority to Suppress Expression of Opposition to the Government.

Frustrated by the inability of colonial governors to suppress American dissent, the British Privy Council in 1770 asserted a formal complaint against Massachusetts on grounds that seditious publications were encouraged and went unpunished.[88] A few years later, the British Parliament tried to stifle the growing American resistance by passing measures that Americans called “The Intolerable Acts” of 1774.  These laws, among other things, suspended the colonial charter of Massachusetts and prohibited town meetings there, on grounds that "the inhabitants have...been

 

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[86] Emergence at 78-9

[87] Massachusetts Spy, Dec. 5 1771, quoted in Emergence at 162. The most likely source for Centinel’s argument is Cato’s Letters, especially letter No. 59, which discusses the reasons why people should be the judges of their government. Trenchard, John, “Liberty Proved to be the Unalienable Right of All Mankind” (Cato’s Letter No. 59) (1721)

[88] Schlesinger, Prelude to Independence (1965) at 310 (hereafter: Prelude to Independence).

was ousted from the throne in the Glorious Revolution of 1688, the right to petition the King was written into the English Bill of Rights, enacted by Parliament as a charter for British liberty in connection with the installation of King William III and Queen Mary as replacements for the deposed James II.

In 1775, Americans had not yet declared independence, and Congress was focused on asserting their rights as British subjects, so they turned to the precedent of the English Bill of Rights of 1689. But the Continental Congress did not just copy the British guarantee of the right to petition. It demanded broader protection of the freedom to protest, by adding the right of people “peaceably to assemble and consider of their grievances.” The declaration included the claim from the English Bill of Rights that prosecutions violating these rights were “illegal” but broadened this claim to cover “all prosecutions, prohibitory proclamations, and commitments” (emphasis added) for expression of grievances against the government. By broadening the scope to cover the right of subjects to assemble and consider their grievances, the Continental Congress declared opposition to basic doctrines of common law under which speech and writing with a tendency to stir up opposition to the government could be prosecuted as seditious libel or seditious speech.

Declaration 8, drafted by John Adams,[94] also had roots in the American libertarian tradition. Congress declared that “all” prosecutions for expressing grievances of the government were illegal. It did not say that, when prosecuted, people had the right to plead truth as a defense or to have a jury decide whether it was illegal to express grievances. The Continental Congress thus asserted a right to press freedom that was inconsistent with the very basis of the common law of seditious libel and represented a milestone in the history of freedom of expression: it was the first time that a body claiming governmental authority had declared that the people who were subject to its authority had the untrammeled right to meet together and discuss their government.

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[94] Works of John Adams, vol. 2, p. 73-5, reprinted in Commager, Henry, and Morris, Richard, The Spirit of Seventy-Six at 56-7 (1958).

 

conducting affairs.[95]

In this brief passage, the Continental Congress made a remarkable conceptual breakthrough in articulating the political basis for freedom of expression. The passage identifies a new political dynamic, whereby “the ready communication of thoughts between subjects” through a free press promoted “union among them.”  The letter asserts that, when rulers act in an oppressive way, this union permits subjects to “shame or intimidate” them into more just ways.  That is, press freedom  fosters independent political organization – a union of the people opposed to the government -- that can effectively oppose the government.  The idea that independent political organizations are necessary to control the government dramatically redefined the relationship between the people and government, and the idea that press freedom is needed to promote such organizations identified a new political aspect to the right.

The author of the letter was John Dickinson,[96] who emerged as a political leader in the colonies during the Stamp Act crisis of 1765.[97]  The political dynamic the letter describes seems to be based on that experience. The Stamp Act, which imposed the first direct tax on the colonies by Great Britain, caused widespread indignation. On the day the tax took effect, newspapers published protests that indeed were circulated throughout the colonies. A movement calling itself the Sons of Liberty grew out of these communications, which led to local protests that were mostly peaceful but included some mobs destroying property of officeholders.[98] Leaders from various states convened the Stamp Act Congress—a union of the people outside of normal government institutions that demonstrated to the British the

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[95] “To the Inhabitants of the Province of Quebec” Oct. 24, 1774, reprinted in Emergence at 174.

[96] 1 Smith, Paul H. et al, eds., Letters of Delegates to Congress, August 1774 – August 1775, 236, 239, 243-44

[97] Tyler, The Literary History of the American Revolution at 114-115.

[98] Maier, Pauline, From Resistance to Revolution 77-91

 

 

the circulation of ideas that in turn allows people to organize themselves into effective political organizations.  The letter did not fully develop this concept but did propose a new political dynamic: popular control of government depends on people being able to organize themselves outside the government control and actually exert pressure on the government, and political organization depends upon free circulation of ideas.

In the legal context, the central purpose of the common law of seditious libel was to prevent publications from stirring up opposition to the government. In the Letter to the Citizens of Quebec, the Continental Congress declared that stirring up opposition to intimidate the government, far from being an abuse of press freedom, was one of the important benefits of a free press. Thus, the Letter denied the very basis of the common law of seditious libel. [102]

The Letter to the Citizens of Quebec is another key document that Levy fails to appreciate. Although Levy’s subject is early American attitudes toward the common law of seditious libel, he ignores the language about promoting a union among the people to shame or intimidate their rulers—the part of the Letter that is directly antithetical to the whole doctrine of seditious libel. Levy asserts that the Letter’s “most significant phrase stressed the diffusion of ‘liberal sentiments.’”[103] According to Levy, the phrase demonstrates the shallowness of the American revolutionaries’ commitment to press freedom, because one local revolutionary committee (the Newport Committee of Inspection) issued a resolution saying, when the press does not promote liberal

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[102] David Anderson has recognized that the notion of shaming and intimidating rulers might be inconsistent with the common law of seditious libel. Anderson, David, “The Origins of the Press Clause”, 30 UCLA L.R. at 524. However, Anderson did not connect the Letter to the Citizens of Quebec with the Declarations and Resolves of the First Continental Congress (discussed above) that declared that prosecutions of people for discussing grievances against the government were illegal, or with the other expressions of opposition to the doctrine of seditious libel discussed in this monograph.

[103] Emergence at 174.

articulated a new political role for freedom of the press—that of creating popular organizations with real power. The dynamic first identified in the Letter to the Citizens of Quebec has been an engine of American politics ever since the revolution.

Moreover, the actions of the revolutionary movement must be evaluated in context. The British had declared war and sent armies to fight the revolutionaries on American soil. In the context of a protracted war against a foreign expeditionary force, where much of the country was occupied by foreign troops, in which casualties occurred on American soil nearly every day, and in which the enemy promised to hang all of the American revolutionary leaders—the relation between writing and action is hardly theoretical. Nevertheless, a remarkable degree of toleration for civilian political activity characterized the American revolutionary movement, when one compares it to nearly any other popular uprising against a government considered intolerably oppressive.[107] The revolutionaries, engaged in a protracted, bloody eight-year war against the institutions of the British monarchy, with few exceptions did not treat civilian British officials and Loyalists as military targets. The Continental Congress limited itself to steps such as urging the states to prevent the people from being deceived into erroneous opinion,[108] a surprisingly mild measure, after the British government had proclaimed a rebellion and declared the members of the Congress traitors, subject to hanging if they were caught.[109]  Several members of Congress reported that measures to punish critics for breach of privilege had been rejected on press freedom grounds.[110]  On several occasions

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[107] As Schlesinger points out, British invaders shut down Patriot presses when they could and threatened violence repeatedly; the Patriot response was to threaten a boycott of Loyalist newspapers publishing threats. Schlesinger, Prelude to Revolution at 219. In Virginia the Royal Governor arrested Patriot printers and destroyed presses. Id. at 239.

[108] Emergence at 177;

[109] Proclamation by the King for Suppressing Rebellion and Sedition (August 23, 1775); Moore, Frank, Diary of the American Revolution (1860) at p. 60-61.

[110] LCC 11:313 (Langworthy to Duer letter, 12/18/79 – Congress rejected move to censor critic on free press grounds); LCC 13:139-141 (Notes by Henry Laurens indicating that Congress rejected breach of privilege charge on free press grounds). I am indebted to Professor Richard Buel for pointing out these references. As Professor Buel has noted, the rejection of the breach of privilege proceedings by Congress appears to have been motivated by political expediency as well as principle for some members doubted that Congress had power, either practical or legal, to enforce a breach of privilege resolution. Buel, Richard, “Freedom of the Press in Revolutionary America: The Evolution of Libertarianism, 1760-1860” in Bailyn, B., and Hench, J., eds., The Press and the American Revolution (1981) at p 81-2.

radical ideas to be published during this period.”[113] Burgh’s discussion of press freedom places the Continental Congress’s rejection of the common law of seditious libel in the mainstream of radical Whig political theory:

it certainly is one of the most atrocious abuses, that a free subject should be restrained in his inquiries into the conduct of those who undertake to manage his affairs; I mean the administrators of government….

[A]ll history shews the necessity, in order to the preservation of liberty, of every subject's having a watchful eye on the conduct of Kings, Ministers, and Parliament, and of every subject's being … encouraged in alarming his fellow subjects on occasion of every attempt upon public liberty, and that private, independent subjects only are like to give faithful warning of such attempts; their betters (as to rank and fortune) being more likely to conceal, than detect the abuses committed by those in power. If, therefore, private writers are to be intimidated in shewing their fidelity to their country, the principle security of liberty is taken away.

.... A libel is in fact (criminally speaking) a non entity, i.e. there is no such offence …[114]

Thus Burgh, a leading Radical Whig, shared the libertarian American view that punishment of libels against the government was inconsistent with civil liberty. Burgh opposed any application of penal law to “inquiry into public abuses,” regardless of whether

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[113] Id., at 75. John Adams called Burgh’s Political Disquisitions “a book which ought to be in the hands of every American who has learned to read.” Adams, John, “Novanglus, or a History of the Dispute with America, from its Origin in 1754 to the Present Time” (1775), reprinted in The Revolutionary Writings of John Adams (2000) (hereafter: Novanglus) at p. 157.

[114] Burgh, James, Political Disquisitions (Philadelphia, 1775) at 246 – 251, reprinted in Kurland, P., and Lerner, R., eds. The Founders’ Constitution (1987), vol. 5, at p. 120. (Burgh’s work was first published in England in 1774.)

urged,

In liberty of discussion, I include the liberty of examining all public measures and the conduct of all public men and of writing and publishing on all speculative and doctrinal points.

…Only overt acts of injustice, violence or defamation, come properly under the cognizance of civil power. Were a person now to go about London teaching that 'property is founded in grace', I should, were I a magistrate, let him alone while he did nothing but teach, without being under any other apprehension than that he would soon find a lodging in Bedlam. But were he to attempt to carry his doctrine into its consequences by actually stealing, under the pretence of his right as a saint to the property of his neighbours, I should think it my duty to lay hold of him as a felon without regarding the opinion from which he acted.

I am persuaded that few or no inconveniencies would arise from such a liberty. If the magistrates will do their duty as soon as violence begins or any overt acts which break the peace are committed no great harm will arise from their keeping themselves neutral till then. Let, however, the contrary be supposed. Let it be granted that civil authority will in this case often be too late in its exertions; the just inference will be, not that the liberty I plead for ought not be allowed; but that there will be two evils between which an option must be made and the least of which must be preferred. One is the evil just mentioned. The other includes in it every evil which can arise from making the rulers of states judges of the tendency of doctrines, subjecting freedom of enquiry to the controul of their ignorance, and perpetuating darkness, intolerance and slavery. I need not say which of these evils is

But Price clearly rejected the whole basis of the law of seditious libel, that is, punishment of ideas on the basis of their bad tendency, even in cases of false publications did tend to encourage criminal activity.  Levy deals with Price in the same way he deals with Burgh: he ignores them both,[120] though he surveys a variety of less-influential English political theorists, whose works may not have even circulated in America, to support his claim that all libertarian political theorists of the period stopped short of outright rejection of the doctrine of seditious libel.[121]

3.6   Philip Furneaux’ Version of the Overt Acts Test Limiting Government Power to Punish Expression of Ideas

Levy does mention one widely read American work that opposed the common law doctrine of seditious libel during the revolutionary period. Philip Furneaux, a religious thinker, published a very libertarian treatise on religious liberty that was widely read through several editions in the early 1770s.[122] Asserted Furneaux:

For if the magistrate be possessed of a power to restrain and punish any principles relating to religion because of their tendency, as he be the judge of that tendency ...religious liberty is entirely at an end; or, which is the same thing, is under the controul, and at the mercy of the magistrate....

If it be objected, that when the tendency of principles is unfavorable to the peace and good

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[120] Levy does mention Burgh’s treatise in his bibliography, but Levy fails to discuss Burgh’s opposition to libel prosecutions. See Emergence, p. 354. Levy does not mention Richard Price at all.

[121] Emergence 284-88.

[122] Emergence 164

of some bad tendency, whether blasphemous or political, but based only on the connection of the writing to an overt act. Here, Furneaux was borrowing from libertarian political philosophy to make his case for religious freedom. The most immediate source of Furneaux's theory that the government could properly punish only “overt acts” is the writing of the French philosopher Montesquieu, who had declared that the overt acts test protected even advocating a murder, so long as the crime was not actually attempted.[124]

Levy does acknowledge that Furneaux’s work was extremely libertarian and widely read, but he dismisses the overt acts test as bad policy that “would have left society defenseless against verbal crimes of any nature, be they public obscenities, solicitations to crime, or direct incitements to crime.”[125] Levy’s criticism is groundless because Furneaux does not actually say that verbal crimes must always go unpunished but rather that the punishment must stem from their connection to overt acts rather than the supposed tendency of the words. Furneaux did not attempt to set forth the precise legal parameters for his overt acts test. He argued against punishing expression of ideas on the basis of their tendency (i.e., against British legal doctrines such as the common law of seditious libel), not trying to work out the full parameters of a more liberal doctrine. Furneaux’s overt acts test can easily be viewed as consistent with more modern doctrines such as the Holmes-Brandeis clear and present danger test or the more recent “speech/action” distinction, which does not leave society defenseless against verbal crimes but rather requires that the connection to real overt criminal acts be proven.[126] Moreover, in criticizing Furneaux on policy grounds, Levy appears to be substituting his judgment about policy for historical analysis.

 Levy’s policy argument adds nothing to historical analysis of the development of free expression, but it does divert attention from another, more important point Furneauxmade: his assertion

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[124] See footnote 84 above.   

[125] Emergence at 165

[126] See Whitney v. California, 274 U.S. 357, 372, 375 (Brandeis, J., concurring) (clear & present danger test); Brandenburg v. Ohio, 395 U.S. 444 (1969) (speech / action test).

later passed the Sedition Act of 1798. But prior to becoming Vice President under Washington, Adams made clear his opposition to use of seditious libel prosecutions to punish critics of the government. As noted above, as an emerging young American political leader in 1765, Adams wrote stirringly supporting the freedom of Americans to oppose measures of their government. In the midst of the Revolution, Adams made clear that the American press was completely free to publish attacks on any government officials and measures. In 1780, Adams wrote very publicly to the President of the Continental Congress,

There is not in any nation of the world so unlimited freedom of the press as is now established in every State of America, both by law and practice.…There is nothing that the people dislike that they do not attack. They attack officers of every rank in the militia and in the army; they attack judges, governors, and magistrates of every denomination; they attack assemblies and councils, members of Congress and Congress itself, whenever they dislike their conduct.[129]

Adams’s letter is particularly significant in connection with the development of American ideas of press freedom because, as one of the acknowledged leaders of the revolutionary movement, he declared that Americans had an untrammeled right to verbally attack their government, even in the midst of the revolutionary war. Such practices were not permitted in England, where several people were convicted of seditious libel for disagreeing with the British war policy.[130] By contrast, American press freedom, boasted Adams, did indeed include toleration of attacks on all government officials, not only in practice, but also under American law of the revolutionary era.

Levy discusses Adams’s views on press freedom at some length—but mysteriously, he ignores Adams’s 1780 letter to the

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[129] 7 Works of John Adams at p. 182. See Rosenberg, Protecting the Best Men at 53.

[130] Bostwick at 87-88.

Blackstonian concept of press freedom as absence of prior restraint, asserting that such limited protection of the press would deter publication of criticism of the government, without which the American Revolution would not have taken place. But he qualified his view by suggesting that it was only true criticism that should be protected from prosecution, declaring, “When the press is made the vehicle of falsehood and scandal, let the authors be punished with becoming rigor.” Cushing suggested that the government should assume the burden of proving falsehood to avoid the appearance of punishing critics unjustly; this might “facilitate a legal prosecution, which might not, otherwise, have been dared to be attempted.” Adams responded, “The difficult and important question is whether the truth of words can be admitted by the court to be given in evidence to the jury, upon a plea of not guilty?” He went on to agree that evidence of truth should be allowed. The Adams-Cushing correspondence presents a much more limited concept of freedom of the press than had been recognized in the revolutionary period. Critics of the government would be exposed to arrest and prosecution based on their words, not their acts.  Neither Adams nor Cushing went so far as to say that truth should be a defense in such a prosecution; rather both seemed to suggest that the government would have the burden of proving the writings false, although they were not as clear as James Alexander had been on this point several decades earlier.  Although neither man actually said that writings should only be protected where the defendant could prove them true, Levy nevertheless asserts that the Adams – Cushing correspondence of 1789 shows both men favored allowing seditious libel prosecutions, modified to allow truth as a defense.^[135]

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[135] Levy goes on to assert that the Adams Cushing correspondence was actually more libertarian than the “unquestioned consensus” at the time that “freedom did not extend to an immunity against punishment for seditious libel, although the evidence is difficult to dig out because the most deeply rooted assumptions are often not articulated.” Emergence at 204. In other words, Levy asserts that Americans accepted the common law of seditious libel, even though he concedes that there is virtually no evidence to support this proposition. Levy can reach this conclusion only by ignoring the substantial body of evidence to the contrary that many Americans in the eighteenth century indeed did reject the whole basis of the common law of seditious libel and believed that freedom of the press meant that they could not be punished for verbal attacks on the government – the position that Adams acknowledged as prevailing in America in 1780, and never repudiated publicly until after he had been elected President.

 

urgency and support to the movement for a stronger federal constitution to empower the national government to maintain order.[139] The uprising also led to the first seditious libel conviction in the United States after Zenger’s case.

3.8. Shay’s Rebellion and the Conviction of Judge William Whiting of Seditious Libel in Massachusetts in 1787; Efforts to Revive Common Law Limitations of Press Freedom

In 1786, William Whiting was a Massachusetts judge with a conservative reputation, but he published a small pamphlet in the middle of Shays’ Rebellion sympathetic with the grievances that had led to the uprising. After Shays’ Rebellion was put down, Whiting was prosecuted for his pamphlet, which accused the state government of favoring wealthy speculators and lawyers at the expense of common people. For example, Whiting claimed that during the revolution the state, lacking funds to pay cash, had issued warrants to soldiers and officers as well as those who provided supplies for the war effort. According to Whiting speculators had bought the warrants up at a fraction of face value, capitalizing on the distress of common people in the hard times that had followed independence, and then the state government raised taxes to pay full face value of the warrants to the speculators. It was the kind of injustice that transformed a republic into an aristocracy of the wealthy, Whiting asserted, declaring

whenever any incroachments are making either upon the liberties or properties of the people, if redress cannot be had without, it is Virtue in them to disturb the government. For I dare pronounce ... that if the people at large do not pay greater attention to the preserving their Liberties than they have done for several years past, particularly with respect to the Persons they chuse into the Legislature their liberties will be but a very short

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[139] Pitkin, Timothy, A Political and Civil History of the United States of America 1763-1797 (1828), vol. 2, p. 216-223.

sentence was remitted.[142])

Levy mentions Whiting’s conviction, only to observe that no one claimed his conviction violated freedom of the press.[143] Actually, although Whiting’s conviction was widely reported in newspapers at the time, there was no discussion whether it violated press freedom; indeed, most of the contemporaneous news reports did not indicate the conviction was for seditious libel.[144] Since the relationship between Whiting’s activities and the armed, violent uprising was not reported, the question of whether Whiting’s conviction violated press freedom could not be meaningfully answered by those who rejected the common law of seditious libel and urged that prosecution must be limited to overt acts.   Indeed, Theodore Sedgwick, who was close to the Bowdoin administration, wrote to Whiting that it was not the words of the pamphlet that were objectionable, but the “circumstances under which they were disseminated,” because the pamphlet fueled the insurrection.[145]  It is not surprising that libertarians of the day were not prepared to rush to the defense of someone who was involved in an armed rebellion against the Massachusetts state government.  

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[142] Id., at 131.

[143] Emergence at 214-15.

[144] Many newspapers seem to have reported that Whiting was convicted in an article listing the punishments meted out to the rebels, without delineating the specific charges against him. See, e.g., Boston Independent Chronicle, April 12, 1787, p.3; Columbia (S.C.) Herald, May 7, 1787, p.2; Connecticut Courant, April 16, 1787, p.3; Cumberland Gazette, April 20, 1787, p.3; Independent Gazetteer (Philadelphia), April 23, 1787, p.2; New Hampshire Gazette, April 14, 1787, p.3; New York Packet, April 20, 1787, p. 2; Newport Herald, April 19, 1787 p.3; Newport Mercury, April 23, 1787, p.3; Norwich Packet, April 26, 1787, p.2; Pennsylvania Packet, April 26, 1787 p.3; Salem Mercury, April 14, 1787 p.3; United States Chronicle, April 19, 1787 p.3. Fewer newspapers seem to have mentioned that Whiting’s conviction was for seditious speech and libel. See, e.g., American Recorder, April 20, 1787 p.2; Essex Journal, April 25, 1787 p.3; Massachusetts Gazette, April 17, 1787, p.3; Middlesex Gazette, April 23, 1787, p.2. Even where the charge against Whiting was identified as seditious libel, the report did not describe what his role in the uprising had been.

[145] Theodore Sedgwick to William Whiting, September 14, 1786, reprinted in Riley, Stephen T., “Dr. William Whiting and Shay’s Rebellion”, 66 Proceedings of the American Antiquarian Society 136, 137 (1956).

 

Jonathan Mayhew, Elisha Williams and others were asserting the right to express opposition to the government, without qualifying that right to apply only to statements that could be proven true.

3.9   The Virginia Statute on Religious Liberty; Jefferson’s Changing Views on Press Freedom

Thus, by 1786, some political leaders were ready to revive the repressive tool of seditious libel to punish those who wrote in opposition to the government, but many Americans clearly did not share these views. In particular, Virginia adopted its Statute on Religious Liberty, one of the touchstones of what we now call Jeffersonian democracy. While the Virginia Statute did not by its terms address civil matters, it wrote into law the American principle of free expression in both religious and civil contexts:

that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on the supposition of their ill tendency is a dangerous falacy [sic], which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself; that she is the proper antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and

prosecute people in Virginia for writings in the 1790s.[151]) In Virginia as elsewhere in the new nation, there were efforts both to expand and restrict freedom of expression by the late 1780s. As we shall see, these conflicts sharpened in the debates over ratification of the Constitution and in the early years of the Republic.

Levy does mention the Virginia Statute on Religious Liberty, conceding that it might be read to embody a broad approach to freedom of expression that would preclude prosecutions for seditious libel. But he rejects this conclusion, pointing to the illiberal laws passed in Virginia in the 1780s and claiming that Jefferson himself never declared that he outright rejected punishing writings as seditious libel. Indeed, Jefferson’s views on the subject changed over time, just as John Adams’s did.

In 1776, Jefferson included in a draft Virginia constitution that “Printing presses shall be free except so far as by commission of private injury cause may be given of private action.”[152]  This appeared to be a very broad concept of press freedom consistent with the overt acts test set forth in the Virginia Statute on Religious Liberty. But in 1783, Jefferson proposed amending the Virginia Constitution to allow prosecution “for false facts printed and published,”[153] seeming to favor a narrower concept of press freedom, which would allow prosecution for publishing material that could be proven false. In 1789, Jefferson recommended a somewhat similar provision for the Federal Constitution which would have declared, “The people shall not be deprived or abridged of their right to speak to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.”[154] While this provision fell short of the “overt acts” test in the Virginia Statute, it still would have required proof of injury to some person or effect on

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[151] Emergence at 327 n.47, citing a study done by graduate students who scoured Virginia newspapers for reports of prosecutions of publications and could find none.

[152] Papers 1, 344-5, 353,363, cited in Smith, Printers and Press Freedom 88-9.

[153] Papers 6:304, cited in Emergence at 250.

[154] Papers 15:367, cited in Emergence at 251 n. 87, letter of Aug 28, 1789.

situation and Jefferson’s role in it, but nevertheless as President he did on several occasions write that the press should be subject to legal restraints for publications proven to be false.[159]

Do Jefferson’s lapses as a civil libertarian negate his contribution to the development of American civil liberties, including press freedom? Levy wrote an entire book called Jefferson and Civil Liberties: The Darker Side that cataloged many illiberal acts by Jefferson during his public life.[160] Astonishingly, Levy fails even to mention Jefferson’s deepest and most obvious flaw as a civil libertarian: Jefferson was a slaveholder. It is a very disturbing omission. Did Levy think that slaveholding did not violate civil liberties or that it was too insignificant a violation to mention? The whole issue of slavery serves as a caution to anyone who proposes that the original understanding of the Constitution and fundamental values of the American republic were an untainted charter for human liberty. The Constitution, with the Bill of Rights, was the product of both ideals and compromises to a reality that was much less than ideal.  Consider Patrick Henry, famous for declaring “give me liberty or give me death”, and a very religious man, who wrote to a friend that he was certain slavery violated the most basic principles of Christianity, but he remained a slaveholder anyway, “because of the general ease of the times.”[161]   Despite the fact that many of the leaders of the early American republic practiced a form of slaveholding that violated the most fundamental human rights, they nevertheless established a new system of representative government that broke ground in guaranteeing fundamental liberties such as freedom of expression. We have come to label some of America’s most basic libertarian traditions as “Jeffersonian democracy,” but Jefferson himself did not always live up to these ideals, and like John

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[159] Examples are collected in Levy, Zenger to Jefferson at 363 – 370, although Jefferson also took more libertarian positions on press freedom during this same period.  Id. at 354-362.  As noted above, Jefferson had earlier taken the position that prosecutions must be limited to cases where falsehood was proven by the government.

[160] Levy, Leonard, Jefferson and Civil Liberties: The Darker Side (1963).

[161] Letter from Patrick Henry to Robert Pleasants, Jan. 18, 1773, reprinted in Meade, Robert, Patrick Henry – Patriot in the Making (1957) at p. 299-300.