Freedom Of The Press: How Far Can They Go?

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The First Amendment to the Constitution says authoritatively, “Congress shall make no law…abridging the freedom of speech, or of the press.” Did that mean state legislatures were free to make such laws? A motion to guard against just such a likelihood was introduced in the First Congress by James Madison but was voted down by the Senate.

Did “freedom of speech” mean all speech? Certainly not during the Revolution, when every state enacted legislation punishing open denunciation of the patriot cause.

And what about “freedom of the press"? Did that refer only to prior restraints on publication, or did it extend to post-publication sanctions as well? Consider this formulation made in 1787 by James Wilson, one of the most influential framers of the Constitution: “What is meant by the liberty of the press is that there should be no antecedent restraint upon it; but that every author is responsible when he attacks the security or welfare of the government, or the safety, character and property of the individual.” Or these more intemperate remarks by Francis Hopkinson, a signer of the Declaration of Independence, who concluded a defense of liberty of the press with these words: “But when this privilege is manifestly abused, and the press becomes an engine for sowing the most dangerous dissensions, for spreading false alarms, and undermining the very foundations of government, ought not that government upon the plain principles of self-preservation to silence by its own authority such a daring violator of its peace, and tear from its bosom the serpent that would sting it to death?”

It is closer to the truth,” the historian Leonard Levy wrote in his controversial study Legacy of Suppression, “to say that the Revolution almost got rid of freedom of speech and press instead of the common law on the subject.” Indeed, it took only seven years from the time the Bill of Rights was adopted for Congress to do just what the First Amendment proscribed it from doing—make a law abridging freedom of the press. The Alien and Sedition Act of 1798, passed at a time of increasing opposition to the Adams administration, made it a crime to publish any “false, scandalous and malicious writing” against the government. Prosecutions were brought against the editors of the four leading anti-Federalist newspapers as well as a number of prominent politicians. Although truth was allowed as a defense, the difficulty of establishing the truth of an opinion in a court of law meant that convictions were virtually guaranteed.

 

The constitutionality of the Sedition Act was never tested by the Supreme Court. The Jeffersonians, who spearheaded the attack against the oppressive measure, were swept into power in 1800 and erased it from the books. But the spirit of antilibertarianism was not easily exorcised. A few years later Jefferson himself initiated a series of prosecutions against the Federalist press, using state libel laws as a weapon of intimidation. In one case, the first libel action ever to reach the Supreme Court, two editors of the Hartford Courant were found guilty of defaming the President by publishing an article accusing him of having bribed Napoleon Bonaparte in connection with the Louisiana Purchase. The Supreme Court upheld the convictions, claiming it had no jurisdiction in state libel matters.

The freedom to criticize government officials and policies lies at the very heart of a democracy, and the degree to which a society tolerates the suppression of such criticism is a certain measure of its pulse. After such feeble beginnings it is hardly surprising to find that the subsequent development of freedom of the press in America has been, at best, arrhythmic.

The repudiation of the Sedition Act and the general acceptance of truth as a defense against libel—New York wrote this into the law in 1805—represented significant expansions of liberty over the English system of common law, but they scarcely shielded the press from attack. For one thing, newspapers were still held accountable for disseminating defamatory remarks and falsehoods—that is, statements that could not be proven true. That such abuses, inadvertent or otherwise, were as much a consequence of publishing a newspaper as smudged fingers was recognized by no less astute an observer than Tocqueville. “In order to enjoy the inestimable benefits that the liberty of the press ensures,” he wrote in Democracy in America, “it is necessary to submit to the inevitable evils it creates. To expect to acquire the former and to escape the latter is to cherish one of those illusions which commonly mislead nations in their times of sickness.”