The freedom of the press enjoyed by American citizens is instituted in the First Amendment’s declaration that ‘‘Congress shall make no law ... abridging the freedom ... of the press.’’ This pronouncement had its origin in previous American theory and practice, which in turn drew on earlier English roots. In all cases, the freedom was understood to include limits on what could be published, but over time political struggles and philosophical developments decreased many of the limits on political expression. Laws against certain verbal crimes, such as conspiracy, obscenity, and threats, were generally accepted as legitimate and were rarely challenged or even discussed.
The printing press was introduced in England during the fifteenth century and by 1538 Henry VIII instituted the first comprehensive royal licensing system. Licensing required that all printed works receive prior approval from a government censor before publication would be considered legal. For decades this licensing system was effective, if imperfect. Blackmarket printing occurred (a third of sixteenth-century books went unlicensed) and importation for politics and profit was also a problem for Crown authorities. But for most sixteenth-century Englishmen, the idea that subjects should have the privilege of publishing their sentiments was seen as dangerous. Nevertheless, by 1600, members in Parliament, at least, had freedom of speech, though debates would sometimes erupt over whether this allowed them to discuss certain topics, such as the royal succession. In any event, printing these debates was still illegal and rare.
The political turmoil of the 1640s and especially the English Civil War (1642–1651), left the king and Parliament unable to regulate the press. As a result, political and religious radicals found the press available to them and pamphlet literature exploded, increasing almost one hundred times over from 1640 to 1642. This practical freedom would continue throughout the decade, despite repeated attempts by Parliament to reestablish control.
The prevailing assumption of most Britons was that the liberty of the press led to division and disorder. The printed controversies and bloody violence of the English civil war only reinforced this view. Radical thinkers argued, to the contrary, that liberty of the press would allow the truth—the one truth, God’s truth—to prevail and that this truth would unite the country. Radicals like John Lilburne also claimed that if Parliament could speak freely, the people should be able to print freely.
The return of order and ultimately the restoration of the Crown brought the return of moderately effective licensing laws. When these laws expired in 1694 they were not renewed, largely due to practical concerns, including the expanding market for imported publications. Most people still feared the power of the press to bring disorder; accordingly, the government continued to assert the authority to punish authors and printers after publication for dangerous or provocative printed matter that challenged the political or religious order.
The end of prior censorship in England, however, did not change the law for its colonies in America. Colonial governors would traditionally receive the same ‘‘instructions’’ from the king, requiring that they or their appointed censors approve and license all printed matter before it was published. Colonial governors were usually willing to comply because they were also suspicious of press liberty. After the arrival of North America’s first printing press in 1638, governors of Massachusetts Bay saw to it that the press was adequately supervised, feeling it was their duty to God to punish pernicious authors. Punishments then included ‘‘bodily correction,’’ such as whipping, tongue-boring, or ear-cropping.
The paramount reason for this sort of control of expression was that the state had to be preserved, and this in turn required keeping the peace as well as maintaining social, political, and moral institutions. Also, in the small, cohesive communities of early America, the good reputation of any individual, public or private, was critical to his practical ability to interact with anyone in that community. Nevertheless, during the seventeenth and into the eighteenth centuries, enforcement was increasingly more lenient than the statutes suggested.
By the 1720s, the royal instructions requiring prior licensing were being ignored; laws against blasphemy (language that offended religious orthodoxy) were rarely if ever enforced. Subsequent punishment for seditious libel (words that tended to threaten or undermine the authority of government) or breach of legislative privilege (words that offended a sitting legislature) were now the chief response to radical printers and authors. Even these punishments were confined to fines and imprisonment. The first newspaper in America had arrived in 1704 and by 1721 Boston, then the biggest and most developed town, had three newspapers. The entry of the third, the New-England Courant, brought a freer world of print. James Franklin, Benjamin’s older brother, and his radical friends actively took to criticizing the colonial government. James was fined, imprisoned and even banned from publishing a newspaper (at which point Benjamin became the nominal editor in addition to his continuing role as a secret contributor). The fact that this opposition newspaper continued in spite of punishments made it clear that governments would now have a much more difficult time restraining the press.
The philosophical justifications for these practical efforts to expand the liberty of the press largely came from colonial interpretations of British advocates of greater press liberty. While prior licensing was no longer seriously proposed, the nature and extent of subsequent punishment was hotly contested. The most influential source for radical arguments was Cato’s Letters, a series of essays written for publication in London newspapers by two Britons (John Trenchard and Thomas Gordon) who wrote under the pseudonym ‘‘Cato.’’ Cato argued that press liberty was a birthright of Englishmen and that it included the right to print one’s sentiments, leaving it to others to judge the merits. Drawing on the radicals of the English civil war, Cato maintained that the truth—for him, political as well as religious truth—would prevail. Accordingly, this individual right was also a public right because criticism of government would allow the political truth to emerge and thus to protect the public from a despotic government (a constant concern of the opposition theorists that colonial radicals chiefly followed). The New-England Courant and other opposition newspapers took to reprinting these essays—and other similar British and colonial essays—frequently.
One such newspaper was John Peter Zenger’s New- York Weekly Journal (1734). As in Boston, a controversy between political authorities and their critics led to a new, opposition newspaper and soon an expansion in the theory and practice of freedom of the press. From a strictly legal standpoint, Zenger did not have a leg to stand on: He admittedly had printed criticism of the governor and, under the usual British common-law understanding, any ‘‘reflections’’ on the government or its officers were illegal. The truth of the matter was at best immaterial and at worse an aggravation of the offense (since true critiques of government were even more likely to undermine its authority and thus had the ‘‘bad tendency’’ to bring a breach of peace).
Zenger’s attorneys, James Alexander and Andrew Hamilton, challenged this long-standing doctrine and maintained, following earlier theorists, that the truth ought to be allowed to prevail. Accordingly, the truth of the libel was central to the case, in their view. Since the jurymen were likely to believe in the truth of the criticisms of the unpopular governor, this argument greatly helped Zenger’s case. But traditional doctrine also held that a jury in a libel case could not issue a general verdict (guilty or not guilty of seditious libel) but rather a ‘‘special verdict’’ limited to the question of publication only (a point that Zenger’s counsel had conceded). Juries, however, had long had a powerful role as populist counterweight to the conservative authority of the rule of law. Zenger’s jury followed the defense’s pleadings and found Zenger not guilty. This bold action did not set a legitimate legal precedent, but it did solidify a new political culture of a broader free press; Zenger’s would be the last seditious libel trial to appear before a colonial jury.
As political life became more secular and more popular during the 1740s and 1750s, the public sphere of print expanded and the practice of press liberty was spread more widely. Over time, the popularly elected lower houses of the various colonial legislatures developed into defenders of the people’s liberty against the royal governor and his allies. This fit with the increasingly common opposition, or ‘‘Whig,’’ notion that the people’s liberty is always threatened by royal or ministerial power. But it raised a problem for freedom of the press: What if someone printed criticism of the popularly elected assemblymen?
On one view, this was simply freedom of the press, an individual’s right to voice his sentiments. But on another view, any criticism that undermined the people’s faith in the assembly was abusing one safeguard of the people’s liberty (a free press) to undermine another (the popular branch of the legislature). In keeping with this second logic, popular assemblies throughout the colonies reprimanded, fined, and even occasionally imprisoned their critics during the first half of the century. Though this tension in the theory of press liberty would not be completely resolved before the Revolution, the complexities involved made this a much less useful—and thus much less common— curb on freedom of the press during the 1750s and 1760s.
The Stamp Act (March 22, 1765) presented a simple and much more dire threat to freedom of the press. These taxes on paper goods of all sorts, combined with the difficulty of getting legally stamped paper, seemed a type of censorship particularly aimed at opposition newspapers (which were less able to pay since they were less likely to profit from government printing contracts). These and other new laws and actions seemed to reveal an unfolding conspiracy for arbitrary power on the part of the British ministry, the royal governors, and their ‘‘Tory’’ allies in the colonies. The people, led by outraged newspaper editors, condemned the Stamp Act and worked to subvert it. This controversy and others like it divided the people into two sides. Even with the news of the repeal of the Stamp Act in May 1766, relations failed to return to normal.
As the crisis deepened in the late 1760s and early 1770s, the press teamed with provocative newspaper articles and political pamphlets on both sides. Limits on the press were still debated, but neither the royalist Tories nor the opposition Patriots could gain enough power to control the press. Tories insisted that they defended an individual’s right to print his political views, even if some Patriots might see those printed views as royalist propaganda aimed at gaining the king’s ministers a complete tyranny over the colonists. Where would freedom of the press be then, the Patriots asked. No, they insisted, freedom of the press was properly used to protect the people’s liberty from an overreaching government, as it always had been. True, the Patriots conceded, the truth will prevail, but only if there is a fair fight. With Tories propagandizing their way to complete tyrannical power, all of the people’s liberties—including freedom of the press—were at risk. Rather than risk this, Patriots took to intimidating and even terrorizing Tory printers and authors.
With the commencement of open hostilities on April 19, 1775, the very real threat to the people’s liberties from ministerial forces became unmistakable. Both sides took to allowing only their partisans to print on their side of the war front. But during the war, within a given side, press freedom largely existed as Patriots, for example, debated whether to declare independence and then on what terms to conclude a peace.
The Revolution brought significant changes to American society. New, more radical leaders took power and average people entered into public life—and political debate—as they never had before. Members of the revolutionary committees became elected assemblymen and had to answer to the voters, which now usually included white men of all ranks of society. The people expected to have a greater say in the actions and policies of government officials, but the language of the press clauses of the new state constitutions drew on established themes.
The first press clause written in Revolutionary America is found in George Mason’s Declaration of Rights for Virginia (1776) and employs the traditional theory, drawn from Cato and others, that a free press is meant as the protector of the people’s liberty from tyrannical power: ‘‘The freedom of the Press is one of the greatest bulwarks of liberty, and can never by restrained but by despotick Governments.’’ Pennsylvania’s radical constitution (1776) was more specific, insisting that the ‘‘printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government.’’ But the early constitutions also voiced the longstanding view that freedom of the press was simply a basic, individual right to print what one pleased. Pennsylvania’s constitution also declared that ‘‘the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.’’
Having just started a war to rid themselves of what they took to be a tyrannical power, the former colonists were careful to emphasize that the people, not a king or even the legislatures, were sovereign. The notion that ‘‘the people’’ were the ultimate source of political power and authority had roots in the English civil war and was a staple of radical theory. But as this idea of popular sovereignty became more widespread in the Revolutionary era, it took on a new cast. Public officials were now ‘‘servants’’ and the people their ‘‘masters.’’ More importantly, one begins to find suggestions of the manner of oversight implied by such a relationship. Virginia’s Declaration of Rights (1776), for example, proclaims in ts second clause ‘‘that all power is vested in, and consequently derived from, the People; that magistrates are their trustees and servants, and at all times amenable [that is, answerable] to them.’’ In keeping with this emerging logic, many of the new state constitutions called for larger legislatures that better represented the people; some constitutions even gave the people the right to ‘‘instruct’’ their representatives on how they should vote on legislative proposals.
These expansions of the theory of popular sovereignty occasioned new understandings of the role of the press and the nature of freedom of the press. Radical thought had long considered the press, like the popular assembly, primarily as a bulwark against ministerial or royal tyranny. More precisely, the press was seen as a last resort if the more moderate, more continuous safeguard provided by the representative legislature should fail. Pamphlets, broadsides, and especially newspapers were the place for dire warnings rallying the troops against an imminent assault on the people’s liberties. This role for the press would certainly continue, but with the advent of broad-based, annual elections for larger, more representative, and more powerful legislatures, the people’s duty and the press’s role now centered on maintaining and shaping rather than simply defending the republics the former colonists had established.
As always, a crucial, difficult question was how far this liberty should go. The press clauses in the early state constitutions did not specify any particular limit and the later constitutions were no more explicit. The Massachusetts constitution (1780), for example, declared that ‘‘The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this commonwealth.’’ (The New Hampshire constitution’s press clause  is almost identical.) While this clause does not enumerate limitations, it is worth noting that the language practically quotes the traditionalist English jurist Sir William Blackstone, but where he insists on subsequent punishment of ‘‘dangerous or offensive writings,’’ these clauses reject constraint.
Even the French revolutionaries, in their Declaration of the Rights of Man and Citizen (1789), explicitly include the traditional notion of post facto responsibility for ‘‘abuse’’ of press liberty—but not the American state constitutions. Although we do have evidence of how common people understood their press clause, as we do in the town meeting discussions of the Massachusetts constitution, it is clear that they read the clause to allow no subsequent legal responsibility whatsoever. It was this understanding that led a number of towns to resolve that the clause should be explicitly amended to provide legal damages for defamation of private individuals.
Ultimately, the Massachusetts constitution was not amended to support explicitly the notion of private libel (defaming publications concerning a person’s private matters or characteristics), but the issue would not go away.Aperson’s private reputation was still seen as sacred and this created complications for freedom of the press in a republic. It soon became clear that if the people are to use the press not merely as a bulwark against tyrannical government, but also as a medium for active, continual, and spirited contribution to the public debate of the republic, some acceptable and relatively distinct dividing line must be fashioned between a people exercising its sovereignty and an individual scandalizing his enemies.
This distinction became more difficult to make as citizens of the new American republic began to wonder whether the truth would really prevail in a raucous, wide-open press. People generally still praised a press open to all sides, believing that even if the press permitted some objectionable or even untrue things to be printed, the benefits of an open press far outweighed the costs and risks of limiting it. Yet there was also an increasing awareness of the disadvantages as well as the advantages of press liberty. Elite figures found their private characters defamed in the press and felt there was little they could do but wait for the truth eventually to prevail and redeem their reputations.
As the 1780s wore on, many leaders saw weaknesses in the loose union created by the Articles of Confederation (1781), the nation’s first constitution. The desire for a stronger, more stable union led to interest in a new constitution with a more powerful central government. Calling themselves ‘‘Federalists,’’ these advocates for a stronger national government met in Philadelphia in 1787 and—exceeding their authority to propose revisions to the Articles—crafted a new constitution, which was to be ratified by conventions in the several states. Opponents of ratification came to be called Anti-Federalists; few of them were at the convention. Many of the Anti-Federalists championed maintaining stronger state governments, where popular control was more direct, as a way to ensure limited government and the protection of rights, press liberty chief among them.
Originally, the federal Constitution had no protection for freedom of the press. Anti-Federalists criticized this weakness repeatedly and to great effect in the ratification debates, but the Federalists insisted that the new national government would only have those powers expressly given to it. All other powers and rights would implicitly be reserved to the people and the states. Press liberty, Federalists repeatedly insisted, was thus beyond federal authority; including a provision protecting it would, at best, be unnecessary and, at worst, would mistakenly suggest a federal power over the press. Many Anti-Federalists maintained the traditional republican view that governmental power continuously and inexorably struggles to expand, and thus without a clear declaration protecting press freedom, the national government would soon seek to limit freedom of the press. Such a limitation, they feared, would undermine the more engaged oversight of the government that they expected of republican citizens.
Critics of the Constitution were more likely than its supporters to stress the advantages of an active press. The Anti-Federalists were not merely being naı¨ve about the benefits of an unrestricted press. They admitted that publications might be used for abusive language and false claims, but the political advantages (not to mention the scientific and literary ones) outweighed the disadvantages to the people. Moreover, the disadvantages of an unlimited political press simply had to be borne, since they were interwoven with the advantages. Federalists, on the other hand, were more likely than their critics to stress the disadvantages of an unrestricted political press. The Federalist suspicion of an open press was in part a function of their suspicion of taking republican theory too far and giving too much real power to an ill-informed citizenry.
Though he was the ‘‘father of the Constitution’’ and a coauthor of the famous Federalist Papers, James Madison came to see the importance of a bill of rights protecting basic liberties, freedom of the press especially. After ratification of the Constitution, Madison proposed a number of amendments as a member of the first House of Representatives. He saw more clearly than anyone that while there was still a threat that the government—even though now republican, not monarchical—might tyrannize the people, the bigger threat was that a majority of the people would tyrannize over a minority of controversial printers and authors. One of Madison’s draft press clauses, to be inserted into the body of the text, read: ‘‘No State shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.’’ Some Anti-Federalists in the House objected that the federal Constitution already had too much influence over the states, but Madison replied that the clause was ‘‘the most valuable amendment on the whole list’’ of proposed amendments. Madison reasoned that the state governments, since they were more directly tied to the people, were most likely to engage in majority tyranny over individual dissenting voices.
Madison also proposed to add another clause to the body of the Constitution, declaring that ‘‘the people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.’’ The House passed both of Madison’s press clauses with nothing more than a slight change in wording. The Senate rejected Madison’s prized state-limiting clause and changed the latter press clause to the now familiar First Amendment appended, with the rest of the Bill of Rights, to the end of the Constitution. We have little record of Senate debates to elucidate the meaning given to the clause in that house, but the Senate did reject another version of the clause that would have suggested the possibility of subsequent punishment for libel. Still, it is clear that many Federalists— and perhaps others—understood ‘‘freedom of the press’’ to allow for such limitations.
The broad language of the final version of the First Amendment left its meaning unclear. Differences over the proper interpretation of constitutional press liberty became heated as competing parties emerged and the future of the fledgling republic seemed to hang in the balance. The Federalists, led by men such as Alexander Hamilton and John Adams, spent the 1790s debating policy and exchanging newspaper attacks with the emerging opposition party, the Democratic-Republicans (led by Thomas Jefferson and James Madison). Newspaper impartiality— never pure or perfect—became a victim of increasing partisanship, and editors started ridiculing, for the first time, the very idea of impartiality. By 1798, the Federalists used the pretext of a ‘‘quasiwar’’ with France to pass a number of draconian measures, including the Sedition Act (July 14, 1798), which was intended to silence Republican printers and other government critics.
The Sedition Act criminalized—along with actual sedition and insurrection—‘‘any false, scandalous and malicious writing or writings against the government of the United States ... or Congress ... or the President, with the intent to defame ... or to bring them ... into contempt or disrepute.’’ The act has long been seen as the embodiment of Federalist arrogance and autocracy. But the Federalists were drawing on a wealth of British and, in some cases, American arguments and precedents. Indeed, the law included provisions that echoed the Zenger trial’s successful defense: evidence of the truth of the alleged libel could be presented by the defense and the jury could issue a general verdict, not merely a ‘‘special verdict’’ on the fact of publication only. Despite these provisions, the sedition law seemed despotic to many people.
The Federalists did not see themselves as despotic or even partisan, but rather loyal to the elected government. Still, the political nature of the sedition law was evident from its specified expiration date as well as its execution. The act was to expire not at the end of the international crisis with France, but at the end of President Adams’s current term. Moreover, only Republicans were indicted, and most of the major opposition papers and several minor ones were targets. The act and its execution were timed with hopes that the trials would take place, and thus silence the editors, before the election of 1800. With the help of a Federalist judiciary and some packed juries, the result was a legal attack on opposition voices and the newspapers.
In defending their approach to freedom of the press, the Federalists drew on some traditional concerns about press abuse, adapted to their view of the new republican theory of government. To them, the Republican critics of government were not defending the people, but attacking them through their elected officials. More importantly, the Federalists maintained that America’s republican form of government made regulating the press even more important than in any other form of government, since elective government ultimately rested on a truthfully informed electorate. The general public’s limited information and education were good reason, Federalists maintained, to mandate constrained and decorous press discourse, lest the people be confused or deceived. For the Republicans, to the contrary, limited information was good reason to foster more wide-open political debate. A republican form of government did not rely merely on elections every few years, they contended, but on continuing debate of public men and measures.
That debate, Federalists observed, had led to a world of deceptive half-truths and outright lies. The political discourse of the 1790s was among the most vitriolic and partisan of any era in America. Accordingly, the Federalists maintained, the truth would not emerge, at least not until much too late. As a result, seditious libel had a bad tendency to undermine the people’s confidence in their chosen officials, making it impossible for the government—the democratically elected government—to carry out its public mandate.
Republicans—like the Anti-Federalists before them—increasing conceded that the truth did not always immediately prevail, but they responded to the Federalists’ theory in a number of ways. First, the centuries-old logic that the ‘‘bad tendency’’ of words might bring a breach of peace was oppressive: It could support the most draconian restrictions on press liberty, since just about any criticism could tend to induce someone to violence. More profoundly, Jefferson, Madison, and their followers maintained that opinion, not ‘‘truth,’’ was really at issue in political debates. Factual truths that could be proven in a court of law were rarely if ever central to a seditious libel case; thus, interpretations of freedom of the press that included protections for provable truth—such as the Sedition Act—were really despotic limitations on press liberty.
Moreover, Republicans insisted that the liberty of the press and its licentiousness—its use and abuse— were inseparable: One simply could not separate and punish what was false and abusive without undermining the necessary and salutary critiques of a spirited, democratic press. One simply had to permit the occasional public (though not purely private) libel.
Republicans like James Madison, then, were formulating and defending a broad notion of press liberty that allowed for civil suits for private defamation, but dispensed with the notion of public libel. Only actual, overt acts of violence or rebellion would be punishable crimes. But this theory was developed by the opposition party at its most extreme and embattled. Once in power, President Jefferson pardoned the victims of the expired Sedition Act, but soon also encouraged a few seditious libel cases against critics of his administration. A few of these cases actually rested on the claim that the federal government, now lacking the statutory jurisdiction of the Sedition Act, could have common law jurisdiction over seditious libel cases; in U.S. v Hudson and Goodwin, 7 Cranch 32 (1812), the Supreme Court held that the Constitution granted no commonlaw criminal jurisdiction. The few other cases drew on state rather than federal law and so were seen as independent of the First Amendment’s declaration that ‘‘Congress shall make no law ... abridging the freedom ... of the press.’’
One of these cases, People v. Croswell (3 Johns. Cas. 337, NY, 1804), gave rise to the theory of press liberty that would animate most states throughout the nineteenth century. Defending the Federalist printer Harry Croswell on appeal, Alexander Hamilton espoused principles that were more restrictive than those that came out of the Zenger trial seventy years earlier and had recently been included in the disputed Sedition Act. Hamilton’s theory of freedom of the press permitted seditious libels laws that gave the jury uncontestable authority to find a general verdict and made truth a justification if ‘‘published with good motives and for justifiable ends.’’ Hamilton lost the case but this standard soon became law in New York and many other states.
Until the twentieth century, the First Amendment’s press clause was not understood to apply to these state laws. Nor did it stop the federal postal service from effectively closing the mail to abolitionist newspapers sent to the South, where state laws also criminalized transmission of publications that could be interpreted as inciting slave revolts. It is worth noting that during the War of 1812, in the face of successful British attacks on American soil and arguably treasonous discussions of New England secession, the Madison administration made no attempt to enact federal restrictions on the press. Nevertheless, despite the libertarian theories of Frederick Grimke and Thomas Cooley later in the century, this view of a nearly absolute political press liberty would not hold sway until the twentieth century.
ROBERT W. T. MARTIN
References and Further Reading
Cases and Statutes Cited
See also Alien and Sedition Acts (1798); Bill of Rights: Structure; Bills of Rights in Early State Constitutions; Freedom of Speech and Press under the Constitution: Early History (1791–1917); Legislators’ Freedom of Speech; Ratification Debate, Civil Liberties in