measures to secure what neither is nor can be in danger?[195]

Rep. Jackson’s speech on the floor of Congress denied the need for a press freedom guarantee to protect against punishment of writers for expressing opposition to the government. To illustrate his point, Rep. Jackson pointed out Congress had brought no breach of privilege proceedings although attacks had been published on a member of the house for his speeches. Breach of privilege proceedings may be unfamiliar to readers today, but were well known in eighteenth century America. As Levy explains, after Zenger’s case in 1735 put an end to seditious libel prosecutions in the American Colonies, “breach of privilege” proceedings were the main tool used by Colonial legislatures to punish political opposition.[196] With juries unwilling to indict or convict government critics for seditious libel, colonial assemblies had repeatedly taken the matter into their own hands and jailed critics for “breach of privilege” apparently meaning their privilege not to be criticized for official acts. When Rep. Jackson brought up breach of privilege proceedings based on publications attacking the legislature, he was talking about the most commonly used legal technique for punishing expressions of opposition to the government in America during the second half of the eighteenth century. It is not surprising in this context that Rep. Jackson did not mention the common law doctrine of seditious libel because it was breach of privilege proceedings, not criminal libel prosecutions, that had actually been used to punish expressions of opposition to the government in the decades leading up to American Independence, as discussed in part 1 above.

Jackson argued that no guarantee of the press was necessary, because people were free to verbally attack its members; Congress lacked power to punish them for breach of privilege and had not tried to do so. In other words, his argument was about a principle of press freedom that would protect against punishment based on

[195] Annals of Congress, 1789, p. 442-43, reprinted in The Founder’s Constitution vol.5, doc. 14.

[196] Emergence at 44-60.