culpability such as maliciousness or intent to injure? Or by requiring the prosecutor to prove the writing in question was false, or recognizing truth of the writing as a defense? Or by requiring a jury trial on the issue of whether the writing was criminal, by contrast to the British rule where the judge made that decision? Or some combination or all of the above?

All of these issues were discussed during the ratification controversy and in the early republic. The scope of press freedom and the standards to be applied simply were not all worked out by the framers of the free press clause. What we can find in history is not an original understanding of the precise legal parameters of First Amendment interpretation for the future, but rather, an understanding of the context in which the First Amendment was adopted and the role it was meant to play in the American system of law and government. The history of the adoption of the First Amendment certainly does not support a “Blackstonian” view of press freedom or what Levy refers to as Zengerian principles, for no one during congressional debate said anything whatsoever about leaving the door open to prosecute people for expressing opposition to the government, or about truth as a defense or having the jury render a general verdict in a criminal libel case.[200]

[200] In the first Senate, an amendment was offered and rejected that would have modified the First Amendment to protect press freedom “in as ample a manner as hath at any time been secured by the common law.” Journal of the First Session of the Senate, p. 117, quoted in Emergence at 260. No debates on the proposal are recorded and there has been no other documentary evidence uncovered as to what was meant or why the proposal failed. Levy argues that the defeat of this measure did not necessarily reflect rejection of common law principles, because it may have been viewed as unnecessary or redundant. However, Levy ignores context that undermines this argument, including Congressman Jackson’s speech discussed above and Madison’s explanation introducing the Bill of Rights that the principle of press freedom was unprotected in the British constitution, that is, not congruent with British common law. In this context, an amendment to limit press freedom to common law would have narrowed the First Amendment. But the proposed amendment was defeated.