Freedom of Speech and Press under the Constitution: Early History, 1791–1917

When reading this, it is important to remember that most of the First Amendment law concerning freedom of speech and press came after the period covered here. Nonetheless, 1791 was important as the year when the U.S. Bill of Rights (the first ten amendments to the U.S. Constitution) came into effect through ratification, whereas 1917 is the year the U.S. Espionage Act, which was designed to punish certain political speech (seen as being dangerous during World War I) was passed. So, the end of our period was just before the first important free speech decision of the Supreme Court of the United States in 1919, Schenck v. United States, which interpreted the scope of freedom of political speech under that act by adopting the ‘‘Clear and Present Danger Test.’’

When we consider the freedoms protected by the First Amendment to the U.S. Constitution during the first 125 years of American constitutional history, our first task is to set aside our contemporary understanding of what the word ‘‘freedom’’ means to us. To be sure, First Amendment ‘‘freedom language’’ is mostly a product of the years since 1917, beginning, as noted previously, with several important cases involving political speech that were decided in the immediate aftermath of World War I. Our task is made somewhat easier by the fact that the seminal early book on freedom of speech, Professor Zechariah Chafee’s Freedom of Speech, was first published in 1920, just after the period that we consider here. Chafee’s update, Freedom of the Speech in the United States, was published in 1941, but, as he notes in his preface to that edition, the substantive material that was covered and first published in 1920 (Part I of the 1941 update) was mostly unchanged. Thus Chafee’s work can help us understand how freedom of speech was seen in 1920.

In Chafee’s 1941 update, from a book of more than 500 pages, only Chapter I (just more than thirty pages) deals with the pre-1918 period, so the first thing we realize is that for most purposes freedom of speech law developed with the prosecutions of political dissidents that followed World War I. It is true that the historical precedent to the Espionage Act of 1917 was the U.S. Sedition Act of 1798, through which the Federalist Party of John Adams sought to prosecute their political opponents, but that act led to no important Supreme Court decisions. Instead, the Act lapsed in March 1801, just before Thomas Jefferson’s inauguration as president. An excellent book, James Morton Smith’s Freedom’s Fetters, covers the relevant events of those years.

We need to note that one reason why a bill of rights was not included in the original U.S. Constitution was based on the view that the U.S. Congress had no power to enact legislation on the subjects eventually covered by the Bill of Rights of 1791. That point was belied by the Sedition Act of 1798, which was predicated on the view that Congress had the power to punish unlawful conspiracies or combinations that might impede the efforts of the federal government. Without knowing that he was beginning a tradition of exceptions, President John Adams called the Alien and Sedition Acts war measures justified by a perceived emergency (because of the possibility of war with France). The Sedition Act created the possibility of prosecution of anyone who ‘‘shall write, print, utter or publish. . .scandalous and malicious writing or writings against the government of the United States, or either House of the Congress. . .or the President. . .with the intent to defame. . .or to bring them. . .into contempt or disrepute; or to excite against them. . .the hatred of the good people of the United States.’’ It is important to note that freedom of speech and freedom of the press were treated in much the same manner at this time, and freedom of the press was probably the more important of the two because then the only way to reach a large audience was through print media.

Elkins and McKitrick’s The Age of Federalism describe the Federalists’ resort to prosecution of its opponents. Their narrative relies in part on Madison’s Federalist 10 in which he argued against political parties and factions as being usually contrary to the public interest. The ideal was that, instead of factions, enlightened and virtuous leaders should transcend narrow interests and seek the higher public good. When this ideal was applied in practice by the Federalists, the outcome was that when men of such good will and reason (as the Federalists saw themselves) were attacked by others who were insolent, vulgar, self-interested, and demagogic (as they saw their opponents), the Sedition Act of 1798 was the reasonable consequence. Madison, however, was not part of this outcome.

Indeed, in 1800 Madison reported to the Virginia legislature on the Alien and Sedition Acts. He argued that the Sedition Act was unconstitutional, because the federal government had no jurisdiction under its enumerated or implied powers over conduct that may have been criminal under English common law (political sedition) and that the First Amendment replaced the common law on freedom of speech and press. As to the federal government, freedom of speech and press were absolute, because there was no authority on the part of the federal government to legislate on those subjects. As to the notion that the common law had only prevented previous restraints against publications and did not prohibit post-publication criminal liability, as quoted by Leon Levy, Madison argued that, ‘‘It would seem a mockery to say that no laws should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made.’’ In the United States, Madison argued, the people, rather than the king, were sovereign and they granted to the government only the powers that they had spelled out in the Constitution of the United States. Another compelling argument in Madison’s report was the fact that the First Amendment also prohibited an establishment of religion by the federal government, whereas there was clearly such an establishment (the Church of England) under the common law. The logical implication was that the common law was modified by the Bill of Rights when the two conflicted, as they did with respect to the establishment of religion. In this context it must be recognized that this logical implication did not apply to the states, although this was not explicitly decided by the Supreme Court until 1833 in the case of Barron v. Baltimore, which held that the Bill of Rights was written to limit the national government. The adoption of provisions protecting freedom of speech and press in state constitutions, however, possibly raised the same logical implication. Although Levy concludes that Madison’s Report was not necessarily indicative of the intended meaning of the Bill of Rights in the period of 1789– 1791, it certainly represented the evolution of Madison’s thinking by 1800.

There were fourteen prosecutions under the Sedition Act. Elkins and McKitrick argue that these cases, while marked with ‘‘brutal highhandedness,’’ were more striking for the ‘‘almost comic clumsiness, the sheer political ineptitude with which the Federalists went about their work of trying to silence the opposition press.’’ Nonetheless only one defendant was acquitted under the Sedition Act of 1798. Because the Sedition Act expired in 1801, coupled with the fact that the U.S. Supreme Court did not exercise the power of judicial review until its decision in Marbury v. Madison in 1803, there was no constitutional review of these cases.

Although political sedition had been part of the common law of England, whether it had been, in effect, repealed by the First Amendment’s protection of freedom of speech was a question that never reached the Supreme Court in our early history. An interesting book on that question is Leon Levy’s Legacy of Suppression. Levy argues that the Federalist leaders, who contributed to the drafting and ratification of the U.S. Constitution, and later the Bill of Rights, did not understand freedom of speech to have broad scope, especially in the instance of political expression. Levy concluded that we know relatively little about the original understanding of the meaning of freedom of speech or of the press within the First Amendment. He notes that, ‘‘The phrase, ‘freedom of speech’ used in connection with the right of a citizen to speak his mind was extremely rare in the seventeenth century.’’ Freedom of the press and of religion were of much greater concern, but even so, under English law prosecutions for seditious libel were the means by which the press could be controlled. Greater tolerance of political criticism and a libertarian understanding of freedom of speech, he suggests, did not come until the Jeffersonians took power. However, Justice Holmes took a contrary position in Abrams v. U.S. (1919), when he concluded that the First Amendment’s protection for freedom of speech was intended to prohibit prosecutions for political sedition, as it was then understood in English common law. Chafee affirms that position in the first chapter of Freedom of Speech in the United States. Whichever view is right, it is necessary to first understand at least the basic elements of the English law of seditious libel (political sedition).

Seditious Libel

The English common law of seditious libel criminalized speech that might have the tendency to bring the government into disrepute, even if the content of the speech was true. According to Chafee, the law of seditious libel in England through the close of the eighteenth century was ‘‘the intentional publication without lawful excuse or justification, of any written blame of any public man, or of the law, or of any institution established by law.’’ Under this definition, freedom of speech and of the press consisted chiefly of the absence of prior censorship, whereas the publication of information tending to disparage public officials or institutions was usually punishable. The early common law rule was that the only question for a jury was whether the defendant had indeed published the material; all other issues were questions of law to be determined by judges. Thus, liberty of the press in particular was simply the absence of a government censor to which publications had to be submitted prior to publication. As reported by Levy, the result was that in prosecutions for criminal libel—those libels against the state—‘‘a man might be arrested on a general warrant, prosecuted on an information without the consent of a grand jury, and convicted for his political opinions by judges appointed by the government he had aspersed.’’

Probably the most famous early prosecution for political sedition in the American colonies was the trial in 1735 of John Peter Zenger, printer of the New York Weekly Journal. Zenger attacked the administration of colonial Governor William Cosby. Cosby assumed his office in 1731 and promptly achieved widespread unpopularity. Zenger, who was associated with the Popular Party that opposed Cosby, was defended by Alexander Hamilton, who argued that truth should be a defense to prosecution for seditious libel. As noted in the website cited in the references, the prosecution accused Zenger of ‘‘being a seditious person and a frequent printer and publisher of false news and seditious libels’’ who had ‘‘wickedly and maliciously’’ sought to ‘‘traduce, scandalize and vilify’’ Governor Cosby and his cabinet. Hamilton argued that the law of New York colony need not be the same as the common law of England. The presiding judge ruled that Hamilton could offer no proof of the truth of Zenger’s publication and instructed the jury that its duty was clear; it was not to judge or alter the law. However, when the question of his guilt was submitted to a jury, Zenger was acquitted. That single, although famous, outcome did not establish the universal principal of truth as a defense, but it did reveal and offer the prospect for enhancing the power of American juries. Yet, Levy concludes that one of the reasons for the fame of the Zenger case was its singularity. Today such verdicts are known as jury nullification, that is, when a jury simply refuses to enforce the extant law. Even given such occasional victories as Zenger’s, Levy argues that to consider the American colonies as ‘‘a society in which freedom of expression was cherished is a hallucination of sentiment that ignores history.’’

Levy reports that the first instance of freedom of speech being protected by a constitution came in Pennsylvania in 1776, when its first constitution said ‘‘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.’’

Despite those words, Pennsylvania failed to protect Loyalist (pro-English) speech during the American Revolution, and Quakers were often the objects of official persecution.

The Cushing-Adams letters of 1789, reviewed by Levy, are often cited for their relatively broad understanding of freedom of speech and press. Cushing was then the Chief Justice of Massachusetts. In his letter to John Adams, Cushing sought Adams confirmation of his view that the free press clause of the Massachusetts constitution guaranteed ‘‘freedom to discuss all subjects and characters ‘within the bounds of truth.’’’ Adams’ reply was that he agreed the provision that Cushing relied on supported the view that a jury ought to determine the truth of accusations and if they found that they were published for the ‘‘Public good,’’ they would acquit. This standard was indeed contained in the Sedition Act of 1798, but the acquittals did not follow. Indeed, Cushing, who became a Justice of the Supreme Court of the United States in 1789, after his letter to Adams was written, presided over some of the trials brought under the Sedition Act of 1798 and viewed that act as constitutional. Since the Sedition Act came only seven years after the First Amendment became part of the U.S. Constitution, the conclusion that Federalists, who then held power, did not see that amendment as a bar to prosecutions for seditious libel seems inescapable.

Story’s Commentaries

In the absence of early judicial precedents interpreting the scope of freedom of speech and press in the United States, we must consider instead the work of notable nineteenth century scholars. Joseph Story’s Commentaries on the Constitution of the United States was published in three volumes in 1833 and dedicated to then Chief Justice John Marshall. In the last volume of his treatise, when discussing freedom of the press, Story emphasized responsibility rather than freedom. He wrote that absolute freedom was a ‘‘supposition too wild to be indulged by any rational man.’’ Instead he wrote that:

It is plain then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property or reputation; and so always that he does not thereby disturb the public peace, or attempt to subvert the government. (Section 1874)

And he added that:

Every freeman has an undoubted right to law what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press. But, If he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. (Section 1878).

Story’s position was consistent with Blackstone’s narrative of the English common law as prohibiting ‘‘previous restraints’’ but not subsequent prosecution. Blackstone’s Commentaries, published in a readily portable format, probably was the single most important law book on the American frontier.

Cooley’s Constitutional Limitations

In his famous book, first published in 1871, Thomas Cooley also concluded that the English law of libel was not abolished by the First Amendment, citing as precedent the opinion of Chief Justice Parker of Massachusetts, who, writing in 1825 in Commonwealth v. Blanding about his own state constitution’s protection of liberty of the press, argued that such liberty should be distinguished from licentiousness and that all that was prohibited by liberty of the press was previous restraints on publication. Thus, prosecutions for publication of material of a blasphemous, obscene, or a scandalous character were not protected. However, Cooley did review at some length the exceptions to the general common law rule against seditious libel that had in England sustained prosecution of publications that had a tendency to defame the government or to subject public officials or institutions to disrepute.

As to common law prosecutions for seditious libel in federal courts, Cooley argued that they could not be maintained, because those courts had no common law jurisdiction, their only jurisdiction being prescribed by Article III of the U.S. Constitution. Reviewing the Sedition Act of 1798, Cooley argued that it was counterproductive, because he thought all such extreme measures might be among a democratic populace. In the abstract he ventured an exception of the discussion of ‘‘constitutional questions’’—that they ought to be privileged ‘‘if conducted with calmness and temperance’’— and that they ought not to be indictable unless beyond the ‘‘bounds of fair discussion.’’ But then he noted the indeterminacy of words like calmness and temperance.

As to state prosecutions, if the American states are the receptors and standard bearers of English common law, Cooley urged that prosecution for seditious libel, because those had been brought in England, were ‘‘unsuited to the condition and circumstances of the people of America, and therefore ought never to be adopted in the several states.’’ Thus, in considering whether there might be liability for criticizing public officials, Cooley reviewed several cases from the American states. For example, a case from New York upheld such criticism as, ‘‘the most sacred and unquestionable rights of free citizens; rights essential to the very existence of a free government; rights necessarily connected with the relations of constituent and representative; the right of petitioning for the redress of grievances and the right of remonstrating to the competent authority against the abuse of official functions.’’ However, when the criticism involved the allegation of the commission of a crime or of corrupt practices, another case from New York held that the proof of justification, chiefly the truth of the allegations, rested on the person making such charges. Finally, when the charges against a public official or candidate concerned only his or her qualifications for office, and did not impugn personal character, there was no basis for recovery of damages. These state cases seem to have offered somewhat greater protection for freedom of speech and press than previously had been the rule under the English common law—because truth was accepted as a defense—as it had not previously been under criminal prosecutions for libel in England. Under the English rule there arose a common law maxim: ‘‘The greater the truth, the greater the libel,’’ as Cooley reports. Nonetheless, newspapers were presumed to have been guilty of malice when their published words were untrue and damaging to individuals. They had the burden of rebutting that presumption. Still, Cooley reported that publishers could not be liable for exemplary or ‘‘vindictive’’ damages without proof of actual malice or of negligence. Cooley’s first edition was published in 1871. It was not until the case of New York Times v. Sullivan (1964) that the U.S. Supreme Court required greater First Amendment protection for the press.

Cooley also reported that several American state constitutions provided that in libel cases the jury had the right to determine both the law and the facts of the case. The limited role of juries in libel cases under the common law of England led to the enactment of what was known as Mr. Fox’s Libel Act in 1792 and, it seems, to the insertion of these provisions in state constitutions. Levy reports that after the Libel Act of 1792, juries were, with few exceptions, as repressive as judges had been. Levy reports that ‘‘There are more trials for seditious utterances reported in the State Trials for the two years after Fox’s Libel Act than the total number reported for the whole of the eighteenth century before that time.’’ These included the conviction of Tom Paine for publishing The Rights of Man. American state constitutional provisions made truth a defense, but only if published with good motives and justifiable ends. Cooley reported that the meaning of those conditions had not been settled by judicial precedents.

In the views of Levy and other scholars, it was the Sedition Act of 1798 that provoked the Jeffersonian Republicans to support a more libertarian understanding of freedom of speech and press and to repudiate the law of seditious libel, chiefly as their defense to Federalist oppression. Jefferson’s Kentucky Resolutions against the Alien and Sedition Acts were introduced in the Kentucky legislature in 1799. It is clear that the resolutions were motivated by fear of Federalist support for greater power for the national government and by Federalist repression of their enemies. That the supporters of the resolutions also favored state nullification of acts of Congress and possibly the right of secession from the union had even greater interest in the events leading to the Civil War.

Lincoln and the Civil War

Certain steps taken by military authorities during the civil war intruded on freedom of speech. A recent book, Daniel Farber’s, Lincoln’s Constitution, does an excellent job of reviewing the Lincoln years. The most famous of these was Ex parte Vallandingham (1864), which involved an order by General Burnside proclaiming that the ‘‘habit of declaring sympathies for the enemy will not be allowed in this Department’’ (Ohio). In 1863, Vallandingham, a former congressman who opposed the war, was arrested for violating Burnside’s order.

Farber reports that Vallandingham had given a speech in which he referred to the war as ‘‘wicked, cruel and unnecessary,’’ and although he said that he would not counsel civil disobedience, he urged his audience to turn Lincoln out of office through use of the ballot box. Although Vallandingham was ordered to be detained for the duration of the war, Lincoln instead ordered that he be expelled into rebel territory. As to the constitutionality of Vallandingham’s treatment, Farber quotes Lincoln’s argument that Vallandingham had been properly prosecuted because he ‘‘avows his hostility to the war on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops; to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it.’’ Whether Lincoln was right or wrong was not determined by the federal courts. The Supreme Court concluded that it had no jurisdiction to review the decisions of the military tribunal that had tried Vallandingham, so it did not rule on the legality of his treatment. Indeed, it ruled on issues like these only after World War I, after the period covered in this article.

One other incident was even more problematic. Lincoln seized the premises of the New York World, a newspaper he suspected of being involved in a Confederate conspiracy, and ordered the arrest of those responsible for its publication. This violates even the guarantee affirmed by Blackstone and others as being protected by the common law: the prohibition against previous restraint.

Lincoln’s defense of his actions was extralegal: that he acted in response to the necessity of preserving the union and consistent with his oath as president to see that the laws are faithfully executed.

In his 1999 book, All the Laws But One, Chief Justice William Rehnquist reviewed Lincoln’s conduct as well, but as part of his book’s overall review of civil liberties in wartime. Because Lincoln’s wartime policies were never effectively challenged in the federal courts, Rehnquist infers that Lincoln’s policies became the ‘‘benchmark for future wartime presidents. Referring to Vallandingham, Rehnquist repeats Lincoln’s famous question: ‘‘Must I shoot a simple-minded soldier boy who deserts while I must not touch a hair of a wily agitator who induces him to desert?’’ The Chief Justice’s comments on Lincoln’s policies focus on the fact that Lincoln, and the military authorities who acted under his executive powers, acted alone, that is, without explicit congressional authorization, yet there was no challenge of his policies as violations of the First Amendment. Although Rehnquist does not adopt the Latin maxim, Inter arma silent leges (the law is silent in wartime), he concludes that although the laws may not be silent in time of war, ‘‘they will speak with a somewhat different voice.’’ It was not until 1919 that the U.S. Supreme Court seriously attempted to set the tone for that different voice.

DONALD W. JACKSON

References and Further Reading

• Blackstone, Sir William. Commentaries on the Laws of England (1765–1769).Chicago: University of Chicago Press, 1979.
• Chafee, Zechariah, Jr. Freedom of Speech. Cambridge, MA: Harvard University Press, 1920.
• ———. Freedom of Speech in the United States. Cambridge, MA: Harvard University Press, 1941.
• Cooley, Thomas M. Treatise on the Constitutional Limitations Which Rest on the Legislative Powers of the States of the American Union. Boston: Little Brown, 1890.
• Elkins, Stanley, and Eric McKitrick. The Age of Federalism: The Early American Republic, 1788–1800. New York: Oxford University Press, 1993.
• Farber, Daniel. Lincoln’s Constitution. Chicago: University of Chicago Press, 2003.
• Levy, Leonard W. Legacy of Suppression: Freedom of Speech and Press in Early American History. Cambridge: Harvard University Press, 1960.
• Madison, James. Federalist No. 10 in Hamilton, Alexander, John Jay and James Madison, The Federalist Papers. New York: The Modern Library Edition, 1937.
• Rehnquist, William. All the Laws But One: Civil Liberties in Wartime. New York: Vintage Books, 1998.
• Smith, James Morton. Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties. Ithaca, NY: Cornell University Press, 1956
• Story, Joseph. Commentaries on the Constitution of the United States. (Reprint of the 1833 edition in 3 volumes). New York: Da Capo Press, 1970.
• On the trial of John Peter Zenger: www.law.umkc.edu/faculty/ projects/ftrials/zenger/zengeraccount.html (accessed July 26, 2005).

Cases and Statutes Cited

• Abrams v. U.S., 250 U.S. 616 (1919)
• Barron v. City of Baltimore, 7 Pet. 243 (1833)
• Commonwealth v. Blanding, 3 Pick. 304 (Mass. 1825)
• Ex parte Vallandingham, 68 U.S. 243 (1864)