The Revolution in Freedoms of Press and Speech:
From Blackstone to the First Amendment and Fox’s Libel Act
This article is adapted from the introduction of the author’s new book: The Revolution in Freedoms of Press and Speech: From Blackstone to the First Amendment (Oxford University Press, 2020).
The conventional view of the history of freedoms of press and speech is that the common law since antiquity defined those freedoms narrowly, and that Sir William Blackstone faithfully summarized that common law in 1769, when the fourth volume of his Commentaries on the Laws of England was published. It said that “liberty of the press . . . consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” The end of that sentence meant that there was no protection from arrest or prosecution after something was published, particularly for the crime of seditious libel (printed criticism of the government or its officials), the subject Blackstone had just discussed. Blackstone went on to discuss liberty of speech in the same vein, as consisting of protection against prior restraints on speech, but not of freedom from arrest or prosecution for “bad sentiments,” which was the crime of seditious words (spoken censure of the government or its officials). In the conventional view, Lord Chief Justice Mansfield and other crown-appointed judges faithfully followed that ancient common law of narrowly defined freedoms of press and speech.1Scholars holding this conventional view, such as Sir James Fitzjames Stephen and Sir William Holdsworth in Britain, Justice Joseph Story and Chancellor James Kent in nineteenth-century America, and large numbers of scholars and judges in twentieth-century America, are discussed in chapter one.
Further, the conventional view is that the narrow Blackstone-Mansfield definition was the only understanding of the meanings of freedoms of press and speech before and at the time the First Amendment was proposed and ratified (during 1789-1791) and Fox’s Libel Act was passed (1792), as Blackstonians and neo-Blackstonians have recited throughout the nineteenth, twentieth, and early twenty-first centuries.2 Forty legal historians and political historians holding the neo-Blackstonian view in the last fifty years, and additional ones before, are discussed in chapter one. For example, Prof. Leonard Levy wrote that at the time of adopting and ratifying the Bill of Rights “[t]o assume the existence of a general, latitudinarian understanding that veered substantially from the common-law definition is incredible, given the total absence of argumentative analysis of the meaning of the clause on speech and press.” Leonard W. Levy, Emergence of a Free Press (New York: OUP, 1985), 267. That book is full of similar statements. E.g., ibid., 116, 118, 136, 154, 169, 170, 172, 191, 204, 249, 269, 289, 294, 297. See also Jud Campbell, “Natural Rights and the First Amendment,” (2017) 127 Yale Law Journal, 246, 304-13. For example, the leading modern exponent of that view asserted that “[n]o other definition of freedom of the press by anyone anywhere in America before 1798” existed, and that “the evidence points strongly in support” of the proposition “that the [First Amendment] clause substantially embodied the Blackstonian definition and left the law of seditious libel in force.” Further, it is claimed that “no evidence suggests an understanding that a constitutional guarantee of free speech or press meant the impossibility of future prosecutions of seditious utterances,” so that until 1798 “no one rejected the crux of the common law: . . . ridiculing or reviling the government, its officers, or policies was seditious libel,” a crime. Only in 1798 and after, some years after the First Amendment was ratified in America and after Fox’s Libel Act was enacted in Great Britain, is a minority viewpoint said to have arisen that challenged the narrow Blackstone-Mansfield definition of freedoms of press and speech and the criminality of protesting against the government or its officials (seditious libel and seditious words). That newly arrived minority viewpoint is said to have been provoked in America by the Sedition Act of 1798 and in Britain by its two laws against sedition in 1795; it is said not to have existed in America before 1798.
But what if that is all backward? This book will explore whether the conventional view is mistaken and whether an opposite view better fits the history of freedoms of press and speech, along the following lines. Perhaps Blackstone misdescribed an accepted common law definition of freedoms of press and speech, which in fact did not exist, when he described narrow liberties of press and speech in 1769, for an ulterior reason such as an overriding loyalty to the king or discomfort with liberal rights claims. Perhaps Mansfield did not find any ancient common law on point, and instead made an approach similar to Blackstone’s description part of the common law by adopting it in 1770 while misdescribing its acceptance and antiquity, for similar reasons. Perhaps Mansfield rewrote the history of the crimes of seditious libel and seditious speech in 1784, to portray their unique rules for prosecuting sedition as also ancient and unquestioned.
Perhaps the reason why those English jurists had to create a new formulation and misdescribe its acceptance was that they wished to counter a large and growing portion of the populace that already believed otherwise and that claimed meaningfully broad liberties of press and speech. Perhaps there was a second definition of freedoms of press and speech, besides the Blackstone-Mansfield definition, long before 1798 and in fact before 1769-1770, which was a broad view of those liberties as not merely freedoms from prior restraint but also from subsequent punishment such as the prosecution of seditious libel or seditious speech. Perhaps that broad view had become the prevailing understanding of the liberties of press and speech by the mid-1760s, outside of Parliament and the common law Courts of Westminster, even before Parliament and those royal courts adopted a contrary view. Perhaps, when the First Amendment was proposed and ratified, that broad understanding had been the predominant understanding of freedoms of press and speech in America for a generation, except for a minority of judges and legislators. Perhaps the authors of the First Amendment chose unqualified wording that embodied the dominant broad public understanding of freedoms of press and speech rather than choosing any part of the new, technical, and counterintuitive narrow definition under English common law. Perhaps, when Fox’s Libel Act was discussed and enacted, that broad understanding had similarly been the prevailing understanding of freedoms of press and speech in England for a generation, outside Parliament and the royal courts. Perhaps in 1798, what appeared for the first time was a majority of Congress and of federal judges accepting the newer narrow approach, as they adopted and defended the Sedition Act, which was that the meaning of freedoms of press and speech was the counterintuitive concept of mere freedom from licensing requirements and from other prior restraints, rather than accepting the older broad understanding of freedoms of press and speech held by most essayists at the time those freedoms were written into the First Amendment and ratified.
This book addresses those possibilities by bringing modern readers into the discussions in Britain and America about what freedoms of press and speech were understood to mean, in the exciting and critical years before the American Revolution and then before America’s Bill of Rights and Britain’s Libel Act. People of all walks of life wrote books, pamphlets, newspaper essays, and other periodical articles, and others gave speeches and court arguments. That evidence from both sides of the Atlantic consistently shows a rising tide of belief in a broad view of freedoms of press and speech during the last half of the eighteenth century, outside Parliament and the royal courts. That is what raised alarm in the British ministry and the courts, and in turn led Blackstone, Mansfield, and other crown-appointed judges to try to stem that tide in 1769 and 1770 and after, and led the Federalist sponsors of the Sedition Act to strive to stem the tide on their side of the Atlantic in 1798.
The “narrow understanding” and “broad understanding” of freedoms of press and speech will be used as shorthand for two clusters of views. The “narrow understanding” or “restrictive view” refers to views such as Blackstone’s that liberties of press and speech mean freedom from prior restraints and not freedom from post-publication punishment such as punishment of seditious libel or “bad sentiments,” and to views such as Mansfield’s (discussed in the next chapter), that “liberty of the press is, that a man may print what he pleases without a licenser: as long as it remains so, the liberty of the press is not restrained.” The “broad understanding” or “expansive view” refers to views such as James Burgh’s and James Madison’s (discussed in chapters four and ten), that there was a “right which every free subject has to speak and write of public affairs,” so that “[p]unishing libels” pursued a bad end of infringing the right of “saying or writing what [a person] pleases on the conduct of those who undertake the management of national affairs, in which all are concerned”; or views such as that of “Junius Wilkes” (discussed in chapter nine), that liberty of press protected against much more than prior restraints such as licensors, and was “annihilated and ruined” by arrests and prosecutions for seditious libel (or seditious words). “Neo-Blackstonian” refers to those today who contend that the narrow understanding was the exclusive, or at least the dominant, understanding in the quarter-century ending when the First Amendment was proposed and ratified (1789-1791) and Fox’s Libel Act was adopted (1792).
Within these clusters of beliefs was much divergence. The narrow viewpoint included some who wished for more restrictions on press and speech and moderates who followed David Hume in believing that then-current restrictions were acceptable but as constraining as freedoms of press and speech allowed. The narrow viewpoint embraced few after the first quarter of the eighteenth century who defined liberty of press or speech as merely freedom from prior restraints such as licensing, until Blackstone, Mansfield, and then some other judges and lawyers adopted that approach. The broad viewpoint included some who only condemned the framework of rules for seditious libel prosecutions, such as excluding a defense of truth or of lack of criminal intent, as inconsistent with freedoms of press and speech and others who condemned not only that framework but the criminalization of seditious libel itself as a violation of those freedoms. These two variants are sorted apart and discussed separately in each of chapters three-nine. The term “broad” or “expansive” is not the same as absolutist, and no one holding a broad viewpoint has been found who advocated an absolutist approach to freedoms of press and speech, condemning any restriction on press or speech for any reason whatsoever. Instead, everyone who mentioned the issue found no conflict between those freedoms and laws against the things that later were treated as unprotected by the First Amendment even though they involve words spoken or published: perjury, blackmail and similar threats, fraud, personal defamation, and some concept of incitement to immediate violence.
This history of freedoms of press and speech is important to understanding the context and scope of those rights, particularly since there are many today who would threaten those rights on both sides of the Atlantic and throughout the world. Two and a quarter centuries have shown that it is not broad freedoms of press and speech that are dangerous but their narrowing and repression.
Blackstone’s and Mansfield’s Approach to Freedoms of Press and Speech and to Two Revolutions
Blackstone and Mansfield each selected for his definition of liberties of press and speech the narrowest of meanings that could be found in seventy-five years of public discussion: mere freedom from licensing and prior restraint that had not existed since 1695. They selected those definitions from popular writing or discussion, not from any prior law or judge’s opinion.
Blackstone presented his very narrow definition of liberties of press and speech as a summary of an ages-old common law on point, which in fact was nonexistent; and Mansfield introduced a very similar definition into the common law the next year and treated it as accepted, even though it was newly formulated, and treated it as ancient, though it was not. Mansfield then described the legal framework (or rules) for seditious libel prosecutions as also ancient, even though it mostly had been constructed during 1696-1706 and recently refined by himself. He declared both the narrow definition of liberties of press and speech and the repressive framework for prosecuting seditious libel to be fully consistent with the common law liberties of press and speech. Blackstone and Mansfield, though not conspiring together, developed a similar defense to a common danger, the very vocal claims of broad liberties of press and speech by critics of the British government on both sides of the Atlantic. The resulting Blackstone-Mansfield definition of freedoms of press and speech, and the neo-Blackstonian view of a surprising number of modern scholars that it was exclusive, or at least the dominant, understanding at the time the First Amendment was adopted and ratified and at the time Fox’s Libel Act was passed–the history of an idea–are the subjects of chapters one and two.
In fact, there was no common law definition at the time Blackstone wrote and Mansfield spoke. The prevalent definition in public discussion at that time was a much more expansive definition of liberties of press and speech, which had risen to primacy recently in the mid-1760s. Blackstone, Mansfield, and other crown-appointed judges waged battle against it by creating their narrow definition. At the same time, the “ancient” framework for prosecuting seditious libel, which decisions particularly of the Court of King’s Bench had adopted, faced widespread challenges in public discussions. That new dominant broad definition of freedoms of press and speech, and challenge to punishments of publications and speech, as well as the widespread attacks on the framework for prosecutions, appeared in large numbers of books, pamphlets, and essays, which are the subject of chapters three-nine. That published discussion responded (mostly critically) to the leading court decisions on seditious libel and other restrictions on press and speech, which are summarized in those chapters and chapter two.
Further, there was no universal acceptance of the new, counterintuitive, narrow definition of freedoms of press and speech after it was added to English common law. No justice of the United States Supreme Court adopted that common law definition, in discussing freedoms of press and speech, until the crisis of 1798 provided an irresistible temptation to most of the sitting justices to support the Sedition Act and to adopt the Blackstone-Mansfield definition and framework for the first time. In the meantime, Justice James Wilson was scathing in rejecting the narrow Blackstone-Mansfield approach, and he and virtually all Republican newspaper editors expressed a broad understanding of freedoms of press and speech, in most instances long before 1798. Little popular acceptance followed the new narrow definition–certainly not nearly enough to dislodge the prevailing broad definition. That broad understanding of freedoms of press and speech had been the prevalent and then dominant publicly-expressed view for a generation before 1798, in both England and America, as chapters three-nine show.
Consequently, the widespread claim of neo-Blackstonians is simply mistaken that “[n]o other definition of freedom of the press by anyone anywhere in America before 1798” existed. The widespread corollary is equally mistaken that, since that narrow definition was the only definition before 1798, it must have been the understanding of those who wrote and approved the First Amendment and Fox’s Libel Act. After 1769-1770, there were competing definitions of freedoms of press and speech, and the narrow counterintuitive one was not the likely candidate for the definition understood by those who wrote and approved the broadly worded First Amendment. Instead, the broad definition was the likely candidate, as a number of considerations show, which are summarized in chapter ten.
The “father of the Bill of Rights,” James Madison, presented the unqualified words protecting freedoms of speech and press as embodying the broad definition rather than the narrow definition. Upon offering those provisions, he said that “freedom of the press and rights of conscience . . . are unguarded in the British constitution,” including the common law, and that “every government should be disarmed of powers which trench upon those particular rights.” Each clause of Madison’s draft and of the final First Amendment was worded to modify the English common law on point in order to provide for far greater protection; no clause was worded with the restrictions that the common law imposed. This was in strong contrast to the Seventh Amendment, which limited appeals of jury determinations to “the rules of the common law.” The wording of that amendment showed that the framers of the Bill of Rights were explicit when they adopted a common law right or restriction and that it was necessary to be express to adopt a common law restriction.
A major reason why belief spread in broad rights of press and speech was that America’s popular party leaders and Britain’s radical Whigs were repeatedly threatened by the king, Privy Council, Parliament, generals, royal governors, and other government officials with prosecution for seditious libel and seditious speech in the ten years before the Revolutionary War. It would be surprising if, after a decade of those threats, the popular party and radical Whigs accepted the restrictive definition of freedoms of press and speech championed by Blackstone and Mansfield under which they had been threatened, or had renounced the broad freedoms of press and speech that they had long practiced and had used to start a revolution. It is no surprise that the popular party and radical Whigs instead rejected that and embraced the expansive definition of freedoms of press and speech. What was at stake was the right to criticize the government, to advocate meaningful rights, and to claim that those rights were violated, set against a government weapon in the form of a political crime.
Why should the popular understanding of freedoms of press and speech take priority over the legal understanding (or, more correctly, a few judges’ views)? One reason is that the popular understanding had existed and had prevailed longer than the Blackstone-Mansfield understanding had been offered as a legal option; the latter appeared in reaction to the former. An independent reason is that the popular understanding was the force behind the changes made by state declarations of rights, the First Amendment, and Fox’s Libel Act and that the judicial understanding was what was rejected and modified. In other words, the adoption of state declarations of rights, and their press and speech provisions, was the result of the popular party’s demand for protection of rights that they believed British law failed to protect adequately. It was not the result of following any existing British law or court decision; instead, in the case of freedoms of press and speech, it was a reaction against British court decisions punishing publications and speeches as seditious libel and seditious words. The drafting of the First Amendment protections of press and speech was the result of popular demand by antifederalists for protections of those rights that they believed the new Constitution failed to protect. Its author, James Madison, said the provision was a result of the inadequacy of British protections. It was not the result of following any existing British or American law or court decision. The enactment of Fox’s Libel Law was the result of popular demand and denunciation of much of the Blackstone-Mansfield framework for seditious libel. It was not the result of legislating any existing British proclamation or court decision (though it professed to be declaratory); it was an effort to overturn some of the British law restricting press and speech, just as Lord Campbell’s Act did again a half-century later. In each case, the major influence on change was the popular demand, and the thing being criticized and changed was the judicial and legal approach. If popular demand was the force behind these changes, it makes sense that the dominant popular understanding of the freedoms involved would be influential as well, and should be considered and that the judicial approach under attack would not be the influential approach propelling the change. The American colonies experienced two revolutions: a revolution in rights against British law’s restrictions as well as the revolution against British rule. The American Revolution could not have occurred without the revolution in rights, including freedoms of press and speech. To make the Revolution possible, protests were published and spoken, debates filled newspaper pages and pamphlets and taverns, the call to arms traveled by print and speech, the Declaration of Independence was printed and publicly read, and essays and speakers debated independence and resistance. The claim was that protest and criticism against the government and its officials should not be criminalized as sedition or treason but should be allowed as rights (whatever their basis–colonial charters, common law, or natural rights). That revolution in rights began before the first shot was fired in revolting against Parliament and king, and in fact, only through it could protests grow into the widespread rejection of Parliament and king, and then into calls for independence and armed resistance. It did not end when the Treaty of Paris was finalized in 1783 but continued after. That revolution was not an assertion or exercise of the narrow freedoms of press and speech described by Blackstone and Mansfield, but of expansive freedoms that allowed denunciation of the British government and monarchy and advocacy of a republican replacement. That revolution in rights was reflected in the broad freedoms of press and speech in America’s First Amendment, even while it was largely repressed in late eighteenth-century Britain and its empire.
Blackstone and Mansfield were enemies, not friends, of both those revolutions. Much as those jurists selected for the description of freedoms of press and speech the narrowest definition that could be found, each selected for colonial American rights the narrowest of protections as each opposed the colonies and their claims: Blackstone denied that the rights of the English even applied to Americans, and instead stated that Parliament had unlimited absolute power, that the King in Parliament could do no wrong, that most rights were not absolute, and that a social contract and a right of revolution were only theoretical, leaving them meaningless in practice. While the revolutionary colonists marched to radical Whig and other dissenting thought, Blackstone and Mansfield were nearly the opposite. They were not likely sources for a revolutionary American definition of liberties of press and speech, however, useful Blackstone’s summaries of common law were and however beneficial Mansfield’s contributions to commercial law were.
The Dominant Understanding of Freedoms of Press and Speech in Public Discussion at the Time of the Bill of Rights and Fox Libel Act
In Britain, nearly all the crown-appointed judges treated the common law crime of seditious libel as a dangerous offense, with little weight being given to any notion of freedom of press or speech and with no more when Blackstone and Mansfield provided their narrow definition and rationale. In colonial America, a minority of crown-appointed judges followed suit, and after the American Revolution began, most left. On both sides of the Atlantic, typical was Lord Chief Justice John Holt’s warning of the threat of seditious libel:
If men should not be called to account for possessing the people with an ill opinion of the Government, no Government can subsist; for it is very necessary for every Government, that the people should have a good opinion of it. And nothing can be worse to any Government, than to endeavour to procure animosities as to the management of it. This has been always look’d upon as a crime, and no Government can be safe unless it be punished.
The well-publicized use of the crimes of seditious libel and seditious speech to suppress opposition press and speech brought a clear recognition that they were political crimes used only against political opponents and that prosecutions denied freedoms of publishing and speaking and were designed to do so.
In reaction to these political crimes, throughout the second half of the eighteenth century, growing numbers of writers and essayists laid claim to freedoms of press and speech and expressed firm understandings of whether those were narrow or broad rights. In America, framers and ratifiers of state declarations of rights, and of the Bill of Rights, adopted definitions of freedoms of press and speech from those public discussions, and to the extent they looked at the Blackstone-Mansfield definition they used language to reject it rather than to embrace it. Those public discussions were the context in which the framers and ratifiers of the Bill of Rights acted, not the diverse views of judges and lawyers. Thus, Madison said he was rejecting the “unguarded” status of freedoms of press and speech under British law–just as public discussions had long sought. In Britain, public discussions were the context in which Fox’s Libel Act was adopted–its core was to remove most issues in seditious libel trials from judges to juries, to impede rather than to further use of a narrow legal definition of freedoms of press and speech–just as public discussions had long demanded. Even the most ardent modern defender of the Blackstone-Mansfield definition of liberties of press and speech agrees that the public discussion and understanding of freedoms of press and speech before and during adoption and ratification of the Bill of Rights was important (quoting that discussion constantly) and influential (stressing its “nearly universal acceptance” and “unquestioned consensus”). Yet important as it is, most of that public discussion of freedoms of press and speech has not before been identified or considered.
The following are brief examples of those publicly discussed views of freedoms of press and speech that became dominant after 1765. These chapters acknowledge that a Blackstonian view was held by some people before and at the time of the First Amendment and Fox’s Libel Act (and today). However, they show that many more participants in the public discussion held a much more expansive view of freedoms of press and speech during the quarter-century preceding 1791-1792. By 1791-1792, those expressing a Blackstonian view had become predominant in the royal courts and Parliament, but not in public discussions in Britain or America, and not in American state legislatures or the constitutional convention or federal courts.
In England, before the colonial crisis began in the early 1760s, a minority agreed with Cato, who devoted an often reprinted letter to freedom of speech (including press) and its role as “the great bulwark of liberty” and “the terror of traitors and oppressors,” by warning against their encroachments. Two years later, in 1722, Cato directed two more letters at the threats posed by seditious libel and seditious words, affirming that “independent Whigs think all liberty to depend upon freedom of speech, and freedom of writing, within the bounds of manners and discretion, . . . to apprize their countrymen of designs and conspiracies against their safety,” while, by contrast, tyrants’ methods “to prevent real libels have proved ineffectual” thus far and “will inevitably destroy all liberty.” That early in the eighteenth century, Cato still limited freedoms of press and speech to “the bounds of manners,” and found it “necessary to punish” evil tongues for libels, especially those that “strike at the person of the prince.” However, more and more subsequent writers did not.
During the years of the colonial crisis, James Burgh ended a chapter on “Liberty of Speech and Writing on Political Subjects” by proclaiming, as Cato had done, that people should be “at liberty to remark as they pleased, upon the conduct of those who undertook the management of their affairs” (government ministers). Burgh added that the “severities” of prosecutions for seditious libels and seditious words should “be immediately restrained”; such articles and speeches should no longer be criminalized. The real reason for those prosecutions was that government ministers “endeavour, by all manner of severities, to drive away those who come with prying eyes to inquire into their proceedings.” “[F]reedom of speech and writing” are vital for warning of “every attempt upon public liberty” and of “abuses committed by those in power.”
Between the American Revolution and the First Amendment in 1789-1791 and Fox’s Libel Act in 1792, the Society for Constitutional Information, a radical Whig organization centered in London, denounced seditious libel prosecutions as “repeated attacks” upon “THE TRIAL BY JURY, and THE LIBERTY OF THE PRESS,” and condemned Lord Mansfield’s 1784 decision that reaffirmed the Blackstone-Mansfield definition of freedom of press and the framework for prosecuting seditious libel. In a pamphlet, the Society warned that “in the case of the dean of St. Asaph, the most alarming doctrines have been held forth to the public, by the majority of the judges of our court of King’s Bench,” and that “if the law be as the court have in this instance declared it, there is an end of trial by jury in matters of libel: there is an end of the liberty of the press.” In the Society’s view, Mansfield’s court posed a mortal threat to the liberty of press, by allowing prosecution of criticism of the government, and by narrowing that liberty to nothingness. That court’s threat also imperiled the right of trial by jury in libel prosecutions–a venerated right–by withholding most issues from the jury. From the 1760s to the 1790s, hundreds of other writers advocated broad definitions of freedoms of press and speech and condemned the entirety or parts of the main restrictions on those rights (criminalization of seditious libels and words).
Similarly in America, thirty years before the colonial crisis exploded, John Peter Zenger, a New York newspaper printer, was prosecuted for the crime of publishing censure of the colony’s governor and his administration. His trial attorney argued for “a right–the liberty–both of exposing and opposing arbitrary power . . . by speaking and writing truth.” That defense was rejected by the judges, but the jury ignored their instructions and swiftly acquitted Zenger. Arguing his case early in the eighteenth century, Zenger’s trial attorney did not attack the criminalization of seditious libel, and his initial attorney did not challenge the criminality of creating “an ill opinion of a just administration.” However, later writers increasingly did.
During the pre-revolutionary decade, in 1766, William Bollan, an American living in London as a colonial agent, published a book entitled The Freedom of Speech and Writing upon Public Affairs. Bollan wrote that “the free examination of public measures, . . . by speech or writing . . . , is the right of the members of a free state, and requisite for the preservation of their other rights.” He saw the two liberties as inseparable: “freedom or restraint of speech and writing upon public affairs have generally been concomitant; and . . . they who are sollicitous to augment the restraints of writing would, upon their success, . . . restrain liberty of speech.” Most of those restraints were the “resolutions of the court of star-chamber which contravene a free enquiry into public affairs”–the “liberty of the press, which hath in times past been so severely restrained by law, or lawless power.” Like most other authors mentioned in this book, Bollan did not understand freedom of press or speech to have the narrow meaning later adopted by Blackstone and Mansfield and instead included in his broad definition a protection against arrest and against prosecution for political speech, the dismal history of which filled much of his book.
In 1789, three days after Madison proposed his draft of what became the First Amendment, a notable Philadelphia newspaper, the Independent Gazetteer, began printing daily articles supporting an expansive understanding of freedoms of press and speech, and condemning a narrow understanding while decrying prosecution of press and speech. The first article wishfully described the “glorious liberties of an Englishman” as including “the freedom of the press, and the privilege of speaking,” including the right “to approve or condemn” whether a public official’s actions were “for the good or the hurt of his country.” If it was not possible to write “against the administration,” then “no liberty of the press exist[ed].” That article was immediately reprinted in New York where Congress sat. The second article, the next day, flayed seditious libel: “these prosecutions for libels are disputes between ministers and the people,” and “pursuing a libeller in a criminal way at all, is alien from the nature of a free constitution.” The newspaper continued the fusillade for the next three and a half months until the Bill of Rights was approved by the House and Senate, and sent to the states for ratification. Thirteen days before the first Congress adopted what became the First Amendment, another essay protested lawyers “attempting to restrain the press, by quoting as LAW for this country, the opinions of arbitrary and corrupt English judges; some of whom have done their utmost to change and new model the British constitution, . . . without the liberty of speech, or of the press.” The essayist then identified the worst judicial culprit, warning that Americans should not “apply this doctrine of the tyrant Lord Mansfield.”
These six examples, from Britain and America, are not atypical. The following chapters discuss hundreds of similar statements, in books, pamphlets, newspaper essays, and other periodicals that show an emergent, then a prevailing, and finally a dominant broad understanding of freedoms of press and speech on both sides of the Atlantic, coupled with growing criticism of the crimes of seditious libel and seditious words. Most were found through original research in primary materials, and over ninety percent have never before been quoted or cited. At the same time, the statements in other books, pamphlets, and essays are discussed that show narrow understandings of those freedoms.
As is evident from this preview, the development of freedoms of press and speech in the English-speaking world was transatlantic and interdependent. Broad understandings germinated in England, and were given legal protection in America; essays in each place were read in the other, and developments in each sent ripples to the other. Moreover, the historical context was intertwined with doctrinal change. Periods of political instability, particularly the period of the Glorious Revolution and the lapse of licensing, the period of the colonial crisis, and the period of the French Revolution, brought concerted efforts by those in power to prosecute seditious libel and to suppress dissidence, and to manufacture more effective ways to do that. That in turn stimulated opposition press and speech, demands for broader freedoms of press and speech, and critical scrutiny of the lack of legal security and the political nature of seditious libel law. Each chapter will begin with a summary of its political context and important legal prosecutions and developments in the period.
The broad understanding of freedoms of press and speech became the prevalent understanding in public discussion during the decade before the revolutionary state declarations of rights (even before the narrow Blackstone-Mansfield definition was formulated) and became the dominant understanding in the two decades before the federal Bill of Rights and Fox’s Libel Act. Consequently, the widespread academic and judicial belief over most of the past two and a quarter centuries that a narrow understanding of those freedoms was universal, or at least dominant, at the time of America’s Bill of Rights and of Britain’s Libel Act was and is mistaken. That mistaken belief resulted from getting it backward about the accuracy of Blackstone and Mansfield–about whether Blackstone accurately summarized the common law and its antiquity on liberties of press and speech, and whether Mansfield accurately portrayed an ancient history of the narrow definition of those freedoms and of the unique rules for prosecution of criticism of the government. That mistaken belief also resulted from getting it backward about universal acceptance of the Blackstone-Mansfield definition–about assuming that it was the exclusive definition before 1798, the only choice available, and that its new, counterintuitive, narrow definition of freedoms of press and speech must have been assumed and adopted by the authors and ratifiers of the First Amendment and of Fox’s Libel Act, instead of the dominant broad public understanding of those freedoms that was already in place from the mid-1760s to the 1790s. ♦
This introduction is used by permission of Oxford University Press. Footnotes that appear in the book are omitted. © Wendell Bird 2020.
Wendell Bird is also the author of Criminal Dissent: Prosecutions under the Alien and Sedition Acts of 1798 (Harvard University Press, 2020), and of Press and Speech under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent (Oxford University Press, 2016); and is a Visiting Scholar at Emory University School of Law.