The nineteenth century is notable for the inactivity of the Supreme Court in matters of freedom of speech and freedom of the press. The century began with these freedoms enumerated in the Bill of Rights, but when interpreted with their common law understandings, proved to offer little protection for individual liberty. A more libertarian and protective notion of freedom of speech and freedom of the press would not emerge in Supreme Court doctrine until the twentieth century. Because provisions of the First Amendment were not incorporated into the Fourteenth Amendment until the twentieth century as well, speech and press were subject to the state-level determination of public order that superseded liberty claims. Given that states and local governments in early America relied on the police power to maintain social order, the criminalization of written material that was offensive or mischievous to public peace was permissible and expected under the common law standards. Nevertheless, the nineteenth century occasioned the development for the construction of modern
In the interplay that ensued between the exercise of public ordering and the resultant resistance from affected individuals who invoked freedom of speech and freedom of the press in more protective versions, a constitutional discourse did take place in American political culture. In these extrajudicial venues, activists articulated modern conceptions of speech. These included the theory of the marketplace of ideas, which encouraged the proliferation of all ideas in the expectation that truth would emerge; the notion of the liberty of speech and liberty of press as prepolitical rights that are not subject to governmental creation or denial; the notion of freedom of speech and freedom of press as instrumental and necessary for a self-governing people to assess their public officials; and the identification of free speech and a free press as essential to the development of human autonomy. Although these theories did not inform the Court’s doctrine in the nineteenth century, the ongoing discourse allowed for a dissemination of these theories in political culture, laying the groundwork for acceptance of the Supreme Court’s later modern free speech doctrine.
The century began with the predominance of the common law conception of freedom of speech and freedom of press and the aftermath of the Sedition Act of 1798. In his exposition of the common law, the eighteenth-century British jurist Sir William Blackstone explained freedom of the press as consisting of the absence of no prior restraint. Liberty of the press meant that the government could not censor material before it was published; once it was printed, however, the writer had to accept the consequences of his words if the government found the expression to be criminal. In this tradition, the Sedition Act was a legitimate exercise of government power. The product of a majority Federalist legislature designed to restrict criticism from the Jeffersonian Republicans in the impending election of 1800, however, this partisan measure invited opposition. Detractors developed arguments against the federal government’s restriction of speech and press and articulated positive arguments for the role of freedom of speech and freedom of the press in self-governance by the people. As President, Jefferson pardoned those who had been convicted under the Sedition Act. The outrage against the Sedition Act did not render illegitimate the federal government’s criminalization of sedition—it would pass a Sedition Act again in World War I—but it did set the tone of free speech discourse that would occur time and again in the nineteenth century in inviting the dynamic of repression and resistance. Free Speech Theory outside the Courts The common law doctrine gave way to more libertarian theories in a pattern of repression and response from radical groups. In stated efforts to maintain public peace and social order, state governments and the federal government passed laws and policies that restricted, silenced, and censored the expressions of groups that threatened the social order, whether they were challenges to slavery, gender norms, or employment law. In response, as affected individuals and groups sought free speech and free press in the public sphere, they mustered arguments that defended their right to freedom of speech and press against government suppression.
As tensions over slavery mounted in the nineteenth century, the federal government sought to avoid deciding on the issue of slavery and to avoid talking about it altogether. Congress, federal agencies, state governments—both north and south—and citizen groups repressed the expression of the ideas that issued from the abolitionist movement. When technological advances allowed for a proliferation of newspapers and pamphlets, abolitionists printed their own literature and attempted to mail it to slave states to reach slaves. The Postmaster General deferred to slaveholding states that prohibited the dissemination of literature for fear of slave insurrection. The federal government supported these state laws with the Post Office Act of 1836, which held that the post office would refuse to deliver mail that was rendered criminal by state law. In the same year, abolitionist groups inundated Congress with petitions requesting it to address the abolition of slavery in the District of Columbia. The House of Representatives received the petitions but failed to discuss them in the notorious gag rule that was finally ended in 1844 after the persistent efforts of Rep. John Quincy Adams. Abolitionist newspapers were targets of anti-abolitionist mobs. The office of the Cincinnati newspaper, Philanthropist, was beset by mobs, and the printer Elijah Lovejoy lost his life defending his presses from mobs in Illinois in November 1837. In response to the multiple forms of suppression of speech, abolitionists responded with defenses of their right to the discussion of slavery in speech and in print. In addition to defending the liberty of slaves, they defended the liberty of abolitionists to express their positions. Abolitionists declared freedom of the speech and the press as natural rights, never relinquished to government, and necessary political rights for participating in self-government. The free exchange of ideas in newspapers, they argued, would allow for a flourishing of positions and the possibility of arriving at the truth. Although public opinion was initially against the abolitionists regarding the issue of slavery, public sentiment turned more sympathetic as the issues of freedom of speech and freedom of press emerged, altering the position of the abolitionist movement in American politics and centrally positioning protective theories of free speech and the press in the public discourse.
The abolitionist movement welcomed women in its ranks, providing them with a forum in the public sphere. Laws denied women the political rights of voting and jury service, whereas social norms dictated that they not speak in public. The practices of the abolitionist movement challenged those norms, with abolitionist meetings seating men and women, blacks and whites, together. Abolitionist women were enlisted as public speakers, violating the stricture against women speaking in public, provoking the charge that women were speaking in front of ‘‘promiscuous audiences.’’ Forerunners included Frances ‘‘Fanny’’ Wright, who conducted a lecture series to much controversy in 1829. Maria Stewart, a freeborn black woman, was a well-known speaker in the early years of the abolitionist movement. In response to a public speaking tour by Sarah Grimke and Angelina Grimke, members of the Massachusetts Congregational clergy publicly expressed their chastisement. The Grimke sisters responded with the development of a theory that recognized women’s right to speech. In her letters written on the equality of the sexes, Sarah Grimke outlined women’s equal rights with men by developing a rights theory in which all rights were granted by God. A government could not create or deny those rights that were between a woman and God. In making the case, Grimke asserted a place for women in free speech theory, but she also advanced modern free speech theory in arguing that freedom of speech was prepolitical and could not be denied to a citizen because of her gender. The common law doctrine, with its repression of speech for the purpose of public order, could not come between the natural rights of any individual and the Creator. A less visible development took place in the practices of women who collected signatures for petitions and sewed goods for sale, opportunities for women to redefine their political identity and to claim a space in political life.
The Civil War occasioned the deprivation of civil liberties of the abolitionists’ opponents—those northern Democrats who declared themselves to be against the war and President Lincoln’s policies. Clement Vallandingham, a former Ohio politician, was arrested in May 1863 for an antiwar speech he delivered at a political rally. A civilian, he was arrested by the United States military and denied habeas corpus, which had been suspended by Lincoln in 1861. Other Democrats were arrested for their dissent, and the military closed or threatened to close newspapers. In response, the Democratic newspaper, Chicago Times, claimed the freedom of the press, a right that preceded the Constitution that the federal government had no right to suppress. U.S. soldiers destroyed copies of the Chicago Times, an act that was reported by the New York Tribune as government suppression of the press. A series of newspaper stories, protest meetings, and party conventions pointed to the recognition that even opponents to abolition deserved the right to speak their opinion. Despite the government’s explanation that civil liberties deserved less protection in time of rebellion, members of the public, abolitionists, and Democrats alike acknowledged the importance of the speech, even speech of the opposition, to democratic governing.
Free speech controversies also occupied the social reformers involved in the free love movement, which originated in the utopian communities of the 1820s and 1830s. Free love advocates challenged the conventions of gender norms and marriage. Early leaders Frances Wright and Robert Dale Owen worked for equality within marriage and reform in divorce laws. The later free love activist Victoria Woodhull provoked a free press controversy in 1872 when Woodhull and Claflin’s Weekly publicized the Beecher-Tilton Scandal, revealing an affair between Reverend Henry Ward Beecher and the wife of his friend, Theodore Tilton. Anthony Comstock had Woodhull arrested for sending obscene material through the mails, but a judge dismissed the charge, noting that the federal statute did not apply to newspapers. The Comstock Act (1873), which suppressed the trade and circulation of obscene literature and items deemed for immoral use, would subsequently target a wide variety of material considered obscene. The Comstock Act included literature about birth control in its prohibitions, a feature that would be fought out in the twentieth century. It was also instrumental in banning books such as Lysistrata, The Canterbury Tales, Moll Flanders, and The Arabian Nights from the mails. The National Defense Association, founded in 1878, provided a libertarian defense for those convicted under the Comstock Act, but the surveillance of the Comstock Act would linger into the twentieth century, and the Act remains part of American law. Prosecuted under the Comstock Act, Ezra Heywood, author of Cupid’s Yokes (1876), claimed freedom of speech to be essential to the development of human autonomy. He sought to associate the earlier abolitionist movement with the free love and anarchy movements of his own time. His prosecution indicates the disconnect between the various radical movements of the nineteenth century. Although the radical social reform and workers’ movements further contributed to the development of modern free speech theory, their theories of free speech became less sympathetic in the eyes of the law and the larger public.
Labor unions in the later decades of the nineteenth century exercised their right to speak. At the Haymarket rally in Chicago on May 4, 1886, in the midst of a nationwide strike over the eight-hour workday, various speakers spoke out for workers’ rights and against the death of two workers at the hands of police at a strike the previous day. Members of anarchist groups distributed fliers for the rally, and Samuel Fielden, a member of the Socialist Labor Party, issued a speech urging workers to challenge and defy the law. Following his speech, a bomb was thrown into the crowd. Eight police officers would eventually die of wounds resulting from the bomb, and a riot ensued, with attendees killed and injured, as the police dispersed the crowd. Eight men were charged, not with throwing the bomb, but with criminal conspiracy. Four of them were eventually hanged. The Supreme Court foreclosed any question of the free speech rights of the speakers when it dismissed the petition for writ of error in Spies v. Illinois (1887).
The disputes over freedom of speech and freedom of the press at the end of the nineteenth century indicated that the struggle between the government’s perceived need for order would continue to conflict with individuals’ stated liberty requirements. Although these struggles would continue into the twentieth century, they would, eventually, fall under the purview of the courts. The nineteenth century remains notable for the public participation in defining and defending rights of speech and press.
KATHLEEN S. SULLIVAN
References and Further Reading
Cases and Statutes Cited
See also Abolitionist Movement; Comstock, Anthony