The Origins and Early Development of Free Speech in the United States

Michael Kahn

Michael Kahn is an attorney in Melbourne, Florida, and is vice chair of the First Amendment Law Committee of the Public Interest Law Section of the Florida Bar. He is also an adjunct professor at Rollins College in Winter Park, Florida. In the following selection he provides a brief overview of the early history of the First Amendment's clause protecting free speech. The people who wrote the Constitution and the Bill of Rights were influenced by English law and history as well as the "natural rights" philosophy being developed in Europe in the seventeenth and eighteenth centuries. But the passage of the First Amendment did not prevent the new national government from passing laws punishing people for seditious libel (speech construed as fomenting rebellion against the government) in 1798. The First Amendment's freedom of speech provisions had little impact on the first hundred years of U.S. legal history, Kahn concludes.

Source

Michael Kahn, "The Origination and Early Development of Free Speech in the United States: A Brief Overview," Florida Bar Journal, vol. 76, October 2002, p. 71. Copyright © 2002 by The Florida Bar. Reproduced by permission.

Primary Source Text

The First Amendment guaranty of freedom of speech is one of the most revered cornerstones of American society. The full text of the amendment reads: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or of the right of the people peaceably to assemble and to petition the government for a redress of grievances.". . .

Most scholars agree that the American political concept of free speech as embodied in the First Amendment originated with the British. However, in the 17th and 18th centuries the intellectual heritage of free speech was diverse. The 17th century Dutch philosopher Benedict de Spinoza (1632–1677), whose philosophy was well known in the colonies, believed that liberty of speech was based upon an "indefeasible natural right" of individuals. Spinoza qualified his support of liberty of speech with the caveat that in some instances government could punish speech if a man spoke opinions "which by their very nature nullify the [social] compact." The French philosopher Montesquieu (1689–1755) believed in the distinction between speech and overt action. In his monumental work, The Spirit of the Laws, he wrote: "The laws do not take upon them to punish any other than overt acts. . . . Words do not constitute an overt act; they remain only an idea."

Thomas Jefferson drew from the precepts of the British philosopher John Locke when he penned the Declaration of Independence. Locke eloquently spoke of man's inalienable rights to life, liberty, and pursuit of property. He was an adherent of the Social Compact theory of government by which a free and independent man gave up unfettered freedom (and anarchy) for the order and security of civilized government. Thus, in advocating the Social Contract theory, Locke at once established the concept of certain unalienable rights inherent to man as well as a theory of government other than divine right. Further, Locke advocated the right of revolution if the government, established by the consent of the governed, should tyrannize its citizens, thus breaking the contract.

Certainly the understanding of free speech that the framers of the Constitution and the Bill of Rights had was taken largely from the scholarship of Sir William Blackstone. He was one of the most ardent early advocates of free speech and, perhaps, its foremost spokesperson in 18th century England. An oft-quoted passage from Blackstone's Commentaries on the Law of England is thought to have formed the basis of the inchoate American colonial concept of free speech. Blackstone observed that

the liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay 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.

It is significant to note that Blackstone excepted certain categories of utterances as not being included in protected speech, including speech that was "blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels." This led to the early distinction which became rooted in American law between prior restraint and subsequent punishment, the definition and elucidation of which distinction an entire series of lectures could easily be composed.

Free Speech in England

Let us not mistake our English forefathers, however; their feet certainly were made of clay. The earliest English history and jurisprudence reveal a deep-seated fear by the church and crown of free speech, which was exacerbated when in 1476 William Caxton set up the first printing press at Westminster and published the first book in England. Authorities of the church and crown worried, probably correctly in retrospect, that the twin "evils" of heresy and insurrection would be furthered by widespread publications and corresponding dissemination of information. Generally speaking, the British crown used three methods to suppress free speech: licensing, constructive treason, and seditious libel. Licensing was the original system of "prior restraint." Soon after the first book was printed in England, the crown empowered the Stationer's Company, whose approval was necessary for publication. An appointed licensor of the Stationer's Company could censor the work and could in his sole discretion deny or approve the license necessary for publication. This system of licensing remained until spring 1695 when the legislation expired not because of any enlightenment with regard to free speech, but because of its impracticality. In 1710, the Statute of Anne first gave to individual authors limited rights to their publications for a period of time.

The legal theories of constructive treason and seditious libel were also utilized to curtail free speech. The law of constructive treason derived from the Statute of 25 Edward III (1352). Constructive treason consisted of either imagining the king's death, levying war against the king, or adhering to his enemies. This law was extended to printed works, with one of the most egregious prosecutions occurring in the case of John Twyn. In a book that he was preparing for publication, Twyn had the temerity to suggest that the king was accountable to the people who were entitled to self government. For this radical notion, he was convicted of constructive treason, hanged, drawn, and quartered.

The seeds of seditious libel originated in a collection of laws known as Scandalum Magnatum, which was passed in 1275 and outlawed any speech that contributed to discord between the king and his people. Sir Edward Coke, as attorney general, reported to the infamous Star Chamber in a case in 1606 that libel of a government official is a greater offense than a private libel and even a true libel may be punished. Coke was another jurisprudential icon of his day, whose work was required reading for 18th century American lawyers, including Thomas Jefferson. The theory behind seditious libel was set forth by Chief Justice Holt in 1704 when he said that "if people 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 all governments, that the people should have a good opinion of it." The jury's role in trials for seditious libel was restricted to ascertaining whether the speech was published; judges ruled whether the speech was libelous.

The British colonists who settled America desired to enlarge the right of free speech. The celebrated case of John Peter Zenger in 1735 is representative. He was the publisher of the New York Weekly Journal and was charged with seditious libel by the governor of New York. His lawyers, Andrew Hamilton and James Alexander, argued that the truth of his critical statements against the governor general should be a defense and that the jury and not the judge should adjudicate criminal intent. Although these novel (to the British) tenets were rejected by the trial judge, the jury set Zenger free.

In literal and figurative revolt from the oppressive tactics of the British after the Revolution, the young nation expanded the notion of free speech but at the same time the vestiges of English suppression remained. James Madison boldly introduced his original version of the First Amendment in the Bill of Rights in 1789 by stating: "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."

However, some scholars have interpreted early American jurisprudence regarding freedom of speech as nothing more than a reiteration of the Blackstonian concept which embraced the pernicious laws concerning seditious libel. As libertarian and historian Leonard Levy concluded when commenting upon the subject,

Freedom of speech and press, as all the scattered evidence suggests, was not understood to include a right to broadcast sedition by words. The security of the state against libelous advocacy or attack was always regarded as outweighing any social interest in open expression. . . .

He reluctantly concluded that the First Amendment did not repudiate Blackstone but left the law of seditious libel in force.

The Role of the Founding Fathers

Since we, like all cultures, have idealized our founding forefathers, it may dismay some to realize that the record of the framers of our Constitution is not unblemished with regard to freedom of speech, especially during and immediately after the Revolutionary War. For example, the acknowledged author of the First Amendment, James Madison, did not support a Bill of Rights either when he endeavored to become one of Virginia's first two U.S. senators or when he ran for the House of Representatives. Only after he lost these two elections did a then philosophically enlightened Madison become a staunch supporter of the Bill of Rights. Thomas Jefferson urged state courts to use state sedition laws against his political opponents. With Jefferson's support, the Virginia legislature in 1777 passed a bill requiring "loyalty oaths," the purpose of which was to punish a person who was "a traitor in thought, but not in deed" according to Jefferson. In this endeavor he also had the support of George Washington.

In 1798, the Federalist government of the United States of America passed four related pieces of legislation known as the Alien and Sedition acts, which were reminiscent of British laws proscribing seditious libel. Ostensibly, the legislation was caused by rising tensions with France which many thought foreshadowed war. However, the Federalists also did not care for the level of insult hurled at President Adams and even at the venerable George Washington by the press. The fourth section of the legislation was the infamous Sedition Act, which prohibited the publication of

false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the president of the United States, with the intent to defame [them]; or to bring them [into] contempt or disrepute.

The act provided that truth would be a defense and that the accused would have the right of a jury trial.

Jefferson, apparently having a change of heart on the subject, and James Madison helped to pass the Virginia and Kentucky resolutions in fierce opposition to the Alien and Sedition acts. In large part his vigorous opposition to the alien and sedition acts led to Jefferson's electoral victory in the hotly contested presidential election of 1800. In his 1801 inaugural address, Jefferson defended the freedom of the press and stressed the necessity of preserving the liberties of thought and speech for all citizens.

After these tumultuous early years in our nation's history, the status of freedom of speech remained fairly quiescent in American jurisprudence for over 100 years.