press freedom had a broad meaning in early American history.^[294] His assertion that the First Amendment precluded seditious libel prosecutions was made in a dissent to a Supreme Court decision upholding a criminal conviction for writings expressing opposition to the military draft during World War I. Over the ensuing decades, Holmes’s great dissenting opinions in free press cases led the way to a revival of American legal principles of free expression.  Yet as late as 1961 the Supreme Court upheld a prosecution under the Smith Act for writing deemed to have a seditious tendency without any proof of connection to imminent action^[295]. Since then, however, American jurisprudence has become much more libertarian, and there is ample precedent in both state and federal courts that indeed criminal punishment for publication of writings on grounds of their bad tendency without proven connection to imminent action does violate the guarantee of press freedom.^[296] To Professor Kurland, everything Holmes wrote about press freedom after Patterson v. Colorado was not even worth considering and more recent libertarian jurisprudence of press freedom an innovation unsupported by the original understanding of the First Amendment.^[297] 

  Kurland also produced a leading reference work, called The Founders Constitution, which includes an unbalanced selection of

 

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[294] Leonard Levy summarized these works. Emergence of a Free Press at xiii - xiv fn.8-11. Leading advocates of this point of view included Justices Oliver Wendell Holmes, Louis Brandeis, several members of the Warren court, Zechariah Chaffee, Henry Schofield, Theodore Schroeder, Leon Whipple and Thomas Cooley.

[295] Scales v. United States, 367 US 203 (1961); see also, Dennis v. United States, 341 US 494 (1951).

[296] See Karst, K., Levy, L. and Mahoney, D., eds., The First Amendment (1990).

[297] Other “originalists” have taken similar positions.  See, e.g.,  Berns, W., The First Amendment and the Future of American Democracy (1976); West, Thomas, “Freedom of Speech in the American Founding and in Modern Liberalism”, 21 Social Philosophy and Policy 310 (2004). Former United States Attorney General Edward Meese, a proponent of Originalism, appears to recognize that early Americans were divided on the meaning of press freedom and that the “original meaning” of the press clause was therefore unclear. Meese, E., Meese, E. III, Forte, D., and Spalding, M., The Heritage Guide to the Constitution (2005), 311-313.