Amendment.^[301]  Thus, Blanding furnishes an early example of an American court looking to foreign law in a case of Constitutional interpretation. ^[302]  There was no discussion whatsoever in Blanding of how press freedom was understood at the time the First Amendment was adopted. 

The British common law standard of press freedom shifted dramatically subsequent to 1825. Indeed, by 1907, when Justice Holmes wrote Patterson v. Colorado^[303], British courts had already rejected the standards set forth in the Blanding case.^[304]  In 1886, a leading British case explained, “the right to discussion is also perfectly unlimited with the exception of course that it must not be

 

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[301] Rex v. Wright, 8 T. R. 293 (1799); Rex v. Creevey, 1 Maule & Selw. 273 (1813); Rogers v. Clifton, 3 Bos. & Pul. 587; Esp. Dig. (3d ed.) 505 (1803); Rex v. Fisher, 2 Campb. 563 (1811); Starkie on Slander, c. 11 (1814). The Blanding opinion also cited one New York case, Thorn v. Blanchard, 5 Johns. R. 508 (1809) that was also decided over a decade subsequent to the adoption of the First Amendment, one British case decided several decades prior to the adoption of the First Amendment Astley v. Younge, 2 Burr. 807 (1759) , at a time when the British common law doctrine of seditious libel was unenforceable in the American colonies and when Americans like John Adams were very critical of British restrictions on press freedom; and one very old British case, Lake v. King, 1 Saund. 131(1668), from a century earlier. No Americans asserted at the time of ratification of the First Amendment that press freedom should reflect the standards of mid-seventeenth century English common law, an era notorious for the prosecution of Algernon Sidney given a death sentence based on unpublished political writings found in his lodgings. See Brant, Irving, The Bill of Rights at 154-58.

[302] Justice Scalia has elsewhere taken the position that American courts should not use foreign law as precedent, other than in exploring the ancient common law traditions that may have been reflected in the framing of American constitutional guarantees. “Full written transcript of Scalia-Breyer debate on foreign law”, Jan. 13, 2005, found at ttp://www.freerepublic.com/focus/f-news/1352357/posts.  Blanding, however, did not discuss ancient traditions, but rather focused on then-contemporary British law from the period subsequent to the adoption of the First Amendment.

[303] Patterson v. Colorado, 205 U.S. 454 (1907), discussed above at footnote 292.

[304] British decisions rendered shortly after Patterson reconfirmed the more libertarian approach of British courts. R. v. Aldred, 22 Cox CC 1 (1909); R. v. Bowman, 22 Cox CC 729 (1912); see Boasberg, James, “Seditious Libel v. Incitement to Mutiny: Britain Teaches Holmes and Hand a Lesson”, 10 Oxford Journal of Legal Studies 106 (1990).