applied a Blackstonian view of press freedom. It is worthwhile to turn to the Blanding case, cited in a 2008 majority opinion of the Supreme Court, because it demonstrates some of the flaws in the originalist approach and just how selectively and out of context originalists sometimes interpret history.

The Blanding decision involved a news article about a coroner’s inquest that found a visitor to an inn had died of drunkenness. According to the newspaper,

It appeared from the same evidence [at the coroner’s inquest], that he [the deceased] had been boarding at said house for about eleven weeks previous to his death, and had not been sober more than four or five days in that time; and there is no doubt but he obtained the liquid poison from the landlord. Will our good citizens look on and see the home for the weary traveler made a sink of dissipation, and let such breaches of the law go unpunished? It is to be hoped, if no other notice is taken of it, that there will be measures adopted to prevent such houses from being licensed….^[274]

The person prosecuted in connection with this incident was not the innkeeper whose guest had died from alcohol poisoning but the publisher of the news account. The publisher, Blanding, was charged with the crime of libeling the innkeeper. The trial judge refused to allow any evidence of the accuracy of the news story, opining that it made no difference in a criminal libel case whether the accusations were true. Nor did the judge allow the publisher to claim the article raised a legitimate issue of public concern or that it was published with that motivation. Rather, the judge declared that, as a matter of law, without any proof other than the words of the article itself, the publication was libelous and done with malicious intent. Blanding was found guilty.

According to the Blanding opinion, this conviction did not violate “liberty of the press” under the Massachusetts constitution. The opinion looked to British common law for the meaning of

[274] Providence Gazette, Feb. 20, 1822, p.3.