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Unoriginal Misunderstanding

Press Freedom in Early America and Interpretation of the First Amendment

by Kenneth Shear (more about this book and author)

Part 1: Introduction: Leonard Levy’s Versions of the History of American Press Freedom
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Some scholars of legal history have asserted that American traditions of press freedom emerged from an illiberal legacy. Professor Leonard Levy and others have claimed that freedom of the press was understood at the time the First Amendment was adopted as a legal concept embodying eighteenth century British common law standards.  Under that standard, press freedom protected the right to publish without prior government censorship but allowed criminal punishment for publications deemed by a court to have a bad tendency, such as writings that might stir up discontent with the government or established religion. This version of history would mean that the “original understanding” of the First Amendment, at the time it was adopted, was much narrower than press freedom is interpreted in courts today.  But Levy and other legal historians have overlooked important evidence that recognizes the libertarian American tradition embodied in the First Amendment. The purpose of this monograph is to demonstrate through review of historical documents that the press freedom guarantee indeed has a much stronger libertarian basis than Levy and other historians have recognized.  I focus on Levy’s work here because it is the most comprehensive and detailed history available and has had an enormous impact in scholarly circles on the study of early American thought about press freedom.

The question of the original meaning of the First Amendment isn’t just academic. Justice Antonin Scalia, a leader in pressing for a more conservative jurisprudence, has repeatedly criticized modern First Amendment doctrine on grounds that it does not reflect the original meaning of the press freedom guarantee. Justice Scalia has focused criticism on the case of New York Times v. Sullivan,[1] which limited libel suits against public figures by

[1] 376 U.S. 254 (1964)
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requiring a showing of “actual malice” as an element of the claim and which Justice Scalia contends was inconsistent with the original meaning.[2] Indeed, in the landmark 2008 case of District of Columbia v. Heller,[3] which established an individual right to own firearms under the Second Amendment, Justice Scalia declared on behalf of a majority of the court that the First Amendment press freedom guarantee does not protect “libel” in general, although he did not define the scope of this exception other than to suggest that it might be similar to restrictions on misuse of firearms.[4]  This monograph reviews extensive historical evidence that conflicts with Scalia’s version of the original meaning of the press clause.  Justice Scalia’s views are discussed further in the conclusion.

It is not my purpose here to propose an alternative “original meaning” of press freedom.   In order to interpret the Constitution according to its “original meaning” a court must adopt one version of history or some other.  Yet, as this monograph shows, even prominent historians have overlooked much of the most important evidence when examining the framing of the First Amendment.  Nor does this monograph pretend to complete the historical inquiry.  History of ideas like press freedom is itself mutable and uncertain, interpretation of the past from the perspective of the present, based upon an incomplete and often ambiguous historical record and seen through the lens of today’s intellectual life.  Yet, it is equally wrong to ignore history.  Today’s law and politics are only the most recent scenes in a longer historical drama.  We did not invent rights such as press freedom or our constitutional form of government. We inherited them. To unmoor our ideas of press freedom from their historical origins and past development would break with the traditions that are the historical foundation on which our democracy stands.   History connects us to the sources of rights like press freedom and supplies examples showing when constitutional guarantees have been upheld, betrayed, exceeded or defended.  Thus, even those who reject constitutional interpretation

[2] See Part 7.4 below.

[3] 554 U.S. ____, 128 S. Ct. 2783 (2008).

[4] Heller, 128 S.Ct. at 2803 & 2821.  Justice Scalia’s views and the Heller opinion are further discussed in the conclusion of this monograph.
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according to some original meaning should recognize the essential role history plays in the interpretation of the Constitution and Bill of Rights.

Levy supplied the leading historical work supporting a narrow view of the original understanding. An academic who was otherwise associated with several liberal causes and who did not himself agree that the Constitution should be interpreted according to some version of its “original understanding,”[5] Levy provided in his 1960 book, The Legacy of Suppression,[6] an extensive review of legal evidence from American and British sources to conclude that the historical record did not show that the “framers” of the First Amendment intended to abolish the common law of seditious libel. He viewed press freedom as similar to British common law doctrine as set forth by Sir William Blackstone in his Commentaries:

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints 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 consequence of his own temerity….To punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations

 

[5] Levy, Leonard, Emergence of a Free Press (1985) xvii (hereafter “Emergence”); see generally Levy, Leonard, Original Intent and the Framers’ Constitution (1988).

[6] Levy, Leonard, Legacy of Suppression: Freedom of Speech and Press in Early American History  (1960) (Hereafter: “Legacy of Suppression”)
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of civil liberty.[7]

Blackstone’s aim was to describe the true principles of common law of late eighteenth century Britain, where it indeed was a crime to publish writings considered by judges to have a “pernicious tendency.”  Under the British doctrine of seditious libel as applied in the eighteenth century, the judge decided whether the writing was a libel.  If so, the jury was directed to return a verdict of guilty if the defendant had published the offending material.[8]  Moreover, truth was not a defense to a criminal libel charge. Many hundreds of prosecutions for seditious libel occurred in Great Britain during the eighteenth century. Examples from a single year, 1794, include: a defendant who “presumed to talk of the Constitution of this country to the poorer classes” and was convicted of seditious libel;[9] Thomas Paine, who was convicted for writing The Rights of Man; and John Muir, who was convicted for quoting a standard history of England in support of an argument that the government should be reformed.[10]  Levy claimed that at the time of adoption of the First Amendment, Americans generally accepted the doctrine of seditious libel, possibly with some modifications such as truth being available as a defense and allowing the jury to decide whether the publication was a libel.

Levy went on to examine the revolutionary era, confederation period, and debates over ratification of the Constitution and early republic. In each of these periods, Levy found American and British legal proceedings and commentary that seemed to support the legitimacy of prosecuting people for criminal libel[11]  Indeed, Levy pointed out, all the courts that reviewed the Sedition Act in

[7] Blackstone, Sir William, Commentaries on the Laws of England (1765-69) book 4, 151-2, reprinted in Levy, Leonard W., ed., Freedom of the Press from Zenger to Jefferson (1966) 104-5 (hereafter, “Levy – Zenger to Jefferson”)

[8] In 1792, the year after the First Amendment was passed by Congress, the British Parliament enacted Fox’s Libel Act, which allowed juries to decide whether the publication was a libel.

[9] Hartford Gazette, Jan. 16 1794, p.1; American Minerva, Jan. 8, 1794, p.4.

[10] The Diary, Mar. 18, 1794, p.2.

[11] Emergence at 16-143 (colonial times), at 144-173 (revolutionary era), at 173-220 (Confederation period), at 220-282 (early republic).
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the 1790s found it to be constitutional. Most of the judges in these cases were Federalists with very partisan outlooks, but one leading Jeffersonian judge in Pennsylvania, James McKean, also declared seditious libel prosecutions to be consistent with press freedom.[12]  Moreover, during the Jefferson Administration, the federal government prosecuted some Federalists for criminal libel in a case known as United States v. Hudson & Goodwin.[13]  

Levy targeted the historical views of Justice Oliver Wendell Holmes and Louis Brandeis for particular criticism.  In the early twentieth century Holmes and Brandeis had propounded the “clear and present danger test” to give real effect to the press freedom guarantee, in particular by prohibiting punishment of people for dissenting political views.  Holmes, Brandeis, and the historians they relied upon, were aware that the United States had adopted its own Sedition Law in 1798 during the administration of President John Adams and that leading Federalists had claimed that a sedition act did not violate the First Amendment guarantee for freedom of the press. But under the Holmes-Brandeis view of history, the Sedition Act was an aberration, and Jeffersonian ascendancy in the election of 1800 and collapse of the Federalist Party demonstrated that the nation rejected the narrow Federalist view of press freedom.  Levy rejected this view of history, concluding that the best that could be said for it was the “Scottish verdict: not proven.”[14]

Levy himself disclaimed any intention to give support to modern advocates of punishing people for expressing ideas, and he expressly disavowed the notion that the First Amendment should

[12] Emergence at 209-213

[13] United States v. Hudson & Goodwin. 7 Cranch (11 US) 32 (1812). The prosecution was brought by the United States Attorney in Connecticut, which had been the scene of several Federalist prosecutions of Jeffersonian newspapers. The Sedition Act had expired prior to this case and so the Jeffersonian prosecutor brought charges of criminal libel under common law without any statutory basis. Motivations behind the prosecution are not entirely clear.  See discussion below at footnotes 158-160.  Ultimately the Hudson & Goodwin case resulted in the Supreme Court’s ruling in 1812 that there was no federal common law in the criminal arena. See footnotes 157-8 and 268 below.

[14] Legacy of Suppression at 237; Emergence at 269.
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be interpreted to comport with the original understanding of its framers.[15]  Levy urged: “The First Amendment’s injunction, that there shall be no law abridging the freedom of speech or of the press, was boldly stated if narrowly understood. The bold statement, not the narrow understanding, was written into the fundamental law.”[16]   He later took satisfaction in the judicial reception of The Legacy of Suppression, noting it had been cited in support of broad libertarian interpretations of the press freedom clause.[17]

Levy’s work was criticized by a number of historians who pointed out that the press in the early American republic freely published all sorts of material that would have subjected it to punishment under British common law.[18]  Other historians disputed Levy’s interpretation of eighteenth century writings and legal records, claiming that Levy had overstated his argument and that there was evidence of a broader understanding of press freedom in America at the time the First Amendment was adopted.[19]  But little evidence was presented directly refuting

 

[15]  Legacy of Suppression at p. xi-xii.

[16] Id., at 309

[17] Emergence at p. xix, citing N.Y. Times v. Sullivan, 376 US 254 at 273.

[18] Jensen, Merrill, Book Review, 75 Harvard L.R. 456 (1961); Smith, James Morton, Book Review 20 William & Mary Quarterly 156 (1961).

[19] See, e.g., Smith, Jeffrey, Printers and Press Freedom (1988): Martin, Robert, The Free and Open Press (2001). David Rabbin’s “The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History”, 37 Stanford LR 794 (1985) provides a deep and insightful critique of Levy’s approach but did not address much of the evidence set forth below, although Rabin does discuss the libertarian influence of English Radical Whigs and mentions Richard Price although without recognizing the depth of Price’s discussion of press liberty or the widespread attention it received. See text at footnote 118  below. Rabbin also recognizes the libertarian views of the Democratic Republican Societies.  Rosenberg, Normal, Protecting the Best Men (1986) does discuss the interpretation of the press clause in the Washington Administration, as noted below. Additional sources are listed by Levy. See Emergence at p. xiv n. 11. Anderson, David, “The Origins of the Press Clause, 30 UCLA LR 455 (1983) provides a detailed parsing of the evidence that might be considered “legislative history” of the First Amendment, pointing out several flaws in Levy’s analysis. Anderson does emphasize the Continental Congress’ Letter to the Citizens of Quebec but does not ascribe to it the importance that I do.  See Part 3.3 below.
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Levy’s version of history.  Justice Hugo Black regarded The Legacy of Suppression  as dangerous because he believed it would give support to advocates of narrowing First Amendment freedoms.[20]  Ominously for press freedom advocates, by the mid-1980s Attorney General Edward Meese was advocating for limiting constitutional provisions such as press freedom to the original understanding.[21] 

In 1985, Levy revised and republished his work as The Emergence of Free Expression,” maintaining his earlier thesis that the records of law cases, legal commentary and political writings did not show an intent by the framers that the press freedom clause would abolish the common law of seditious libel. While Levy adhered to his earlier view of intellectual and legal history, he admitted a flaw in his earlier understanding of the historical record; he had failed to recognize that the American press during the 1780s and 1790s was full of material that would have exposed writers to punishment, if the law of seditious libel were indeed in force.[22]  So as a practical matter, it appeared that Americans of the early republic acted as if press freedom were not constrained by common law doctrines. Some prosecutions occurred during this period, particularly under the Sedition Act of 1798, but these were controversial and ineffective in limiting the actual exercise of very broad press freedom. Levy concluded that, although much evidence suggested that the framers did not see seditious libel prosecutions as violations of press freedom, the press acted as if it were unrestricted by the danger of such prosecutions.[23].This revised conclusion gave a less certain tone to Levy’s work, but as a whole, The Emergence of a Free Press still focuses on marshalling

[20] Emergence at xviii.

[21] See Meese, E, “Interpreting the Constitution” in Rakove, J. Ed., Interpreting the Constitution p. 13- 21 (1990)

[22] Emergence, at p. ix - xii

[23] Emergence at x. Curiously, though Levy indicates he reviewed American newspapers thoroughly, he appears to have missed nearly all of the articles cited below that show a great deal of American opposition to the doctrine of seditious libel.
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evidence to support the argument that for seditious libel or speech with a bad tendency did not violate the “original understanding” of the First Amendment press freedom guarantee.[24]

But Levy omitted from his work important evidence supporting a much more libertarian view of the First Amendment’s origins, which this monograph sets forth. While other commentators have disagreed with Levy’s thesis, none of his critics seems to have assembled the evidence he omitted, and this evidence has largely gone unnoticed. With Justice Scalia and others now asserting that the Constitution must be interpreted to comport with a court’s interpretation of the “original meaning”,  it is all the more important to review the evidence supporting a more libertarian reading of the original understanding of press freedom under the First Amendment. 

The evidence addressed by this monograph falls into several categories:

· Eighteenth century libertarian theories opposing the doctrine of seditious libel by prominent political theorists acknowledged as influential by leaders of the American revolution and early republic, including Jonathan Mayhew, Elisha Williams, John Adams, James Burgh and Richard Price

· Declarations by the Continental Congress and American revolutionary leaders that prosecution of people for expressing opposition to the government violated press freedom

· Multiple demands by anti-federalists for protection from libel prosecutions and the preamble to the Bill of Rights indicating that the free press guarantee was intended to answer these demands

· Debate during consideration of the free press guarantee by the First Congress indicating that freedom of the press meant that there would not be punishment based on publications that attacked the government

· Opinions by the first two attorneys general of the United States that seditious libel prosecutions  were prohibited by the First


[24] See Emergence at p. xii – xiii.
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Amendment, and

· Newspaper articles during the Washington administration by both Jeffersonians and Federalists repeatedly asserting that seditious libel prosecutions would violate freedom of the press and asserting that libel prosecutions destroyed press freedom in Britain.

This monograph is generally organized chronologically, with sections examining evidence from the following periods: the colonial era, the Revolution and confederation period, the debates over ratification of the Constitution, the debates in the First Congress on the Bill of Rights, the Washington Administration, and the Sedition Act dispute. It concludes with a critique of modern First Amendment views, such as those of Justice Scalia and Phillip Kurland, that rely on an understanding of history that is neither original nor accurate.

I call this work a monograph rather than a book because it provides a review of historical documents and other evidence that refute some of the scholarship that underlies the “original understanding” that would narrow First Amendment Freedoms.  This work does not go as deeply as it might into the interesting and profound lessons that we can draw from the remarkable thought and writing that went into the deep traditions of American liberalism surveyed in this work.  The central purpose here is to make important parts of this historical material that have been overlooked in other works on this subject available to readers and to courts considering issues relating to the press freedom guarantee. A deeper examination of the political and legal significance of this material is for another day.
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