people who had opposed the constitution because of the lack of such guarantees. To Levy, it is unimportant that the Bill of Rights in general, and the press freedom clause in particular, was meant to address the concerns of anti-Federalists.[199] Indeed, in Levy’s version of history, when considering the original understanding of the meaning of press freedom under the First Amendment, great weight should be given the views of Wilson and other federalists who believed that a bill of rights and free press clause should not be added to the Constitution. That is a version of history that contradicts both Madison’s statement in introducing the Bill of Rights and also the preamble that ultimately became part of the Constitution. The ratification debates, as discussed above, provide much evidence that those who believed “liberty of the press…in jeopardy” did indeed consider seditious libel prosecutions to be one of the important threats. Rep. Jackson’s speech on the floor of the First Congress confirms that the concept of press freedom was broad enough to prohibit punishment of opposition to the government under the doctrine of legislative privilege, a common law counterpart to the common law of seditious libel.

The purpose of the press freedom clause was to address fears that seditious libel prosecutions would violate press freedom. But how? By prohibiting all prosecutions based on the tendency of words without accompanying criminal action? Or requiring proof of actual damage to reputation? Or some other standard of

[199]Indeed, Levy appears to believe that the anti-Federalists “had used the bill of rights issue as a smokescreen for objections to the Constitution that could not be dramatically popularized” and did not really want a bill of rights. Legacy at 257. Historians who have examined the anti-federalist movement in greater detail do not agree. See, e.g., Main, Jackson Turner, The Anti-federalists (1961); Wood, Gordon, The Creation of the American Republic, 1776-1787 (1969). As these works document, although some anti-federalists surely did try to capitalize on the popular appeal of the bill of rights issues, many anti-federalists were strong libertarians whose opposition did indeed center on the lack of protection for individual rights and liberties. Indeed, the obvious flaw in Levy’s view is that in several states, the promise to incorporate the bill of rights indeed did win over enough delegates who were originally opposed to achieve ratification of the Constitution. If the bill of rights issue were a mere “smokescreen” it is difficult to see why anti-federalist delegates and leaders would have agreed to ratification on this basis.