that created a set of basic principles for governing which were not complete and meant different things to different people at the time. Principles were mixed with promises, like the negative guarantee of press freedom that promised the government would not make laws abridging freedom of the press. The history of that promise has included real restrictions on the government protecting the press in some cases, but history also includes examples of betrayal of the free press guarantee, misunderstandings and compromises. To interpret the press freedom clause consistently with its origins does not mean implementing the legal standards of “press freedom” inherited from British law as they existed at the time of adoption, because the promise was made to address the concerns of people who clearly demanded a broader scope for press freedom. It means understanding the context in which the Bill of Rights was adopted and especially the libertarian thought and sentiment that caused the American people, in the ratification process, to require that a guarantee of press freedom be part of fundamental law. The origins of the First Amendment are therefore to be found in these libertarian traditions, but the actual dynamics underlying how courts and political leaders have interpreted the First Amendment have obviously been influenced by many other considerations.

8.2  Commonwealth v. Blanding and Justice Scalia’s View of Press Freedom under the First Amendment.

Yet original meaning has certainly become an issue in modern judicial interpretation of the Constitution. In particular, Justice Antonin Scalia has urged repeatedly that modern libertarian views of the First Amendment should be rejected on grounds that they do not comport with the original meaning of the First Amendment. Justice Scalia has not to date set forth in any detail what version of the original meaning he favors, but in a recent opinion,^[272] he cited approvingly an old case, Commonwealth v. Blanding,^[273]  that

 

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[272] District of Columbia v. Heller, __US __, 128 S.Ct. 2783 (2008) (hereafter: “D.C. v. Heller”).

[273] Commonwealth v. Blanding, 3 Pick. (20 Mass.) 304 (1825) (hereafter: “Blanding”).