Freedom of Speech & The Press

Freedom of Speech & The Press

Professor Volokh asked a question over at Volokh Conspiracy about evidence of what the Framers intended the First Amendment's freedom of speech and press provisions to mean, in the context of the famous case New York Times v. Sullivan (1964), which almost gutted libel law if it involved a public figure.

I recalled reading a paper about the subject when I was an undergrad to the effect that the original intention was to prevent prior restraint; it did not mean that you could not be held responsible for the abuse of those freedoms. I remembered that Ben Franklin had quoted Shakespeare about how a person who steals his purse steals trash, but that if someone destroys his good name, it was far worse.

So I did a little digging, and found some interesting remarks by either Framers or at least early Republic legal commentators on the subject. James Wilson, Associate Justice of the U.S. Supreme Court at the time it was formed, and noted legal scholar of his time, has a lengthy discussion of libel law, both civil and criminal, exploring where he thinks Blackstone went wrong. Wilson seems not to have a problem with his statement of criminal libel's punishment:

The punishment of a libel is a fine, or a fine and corporal punishment. [Works of the Honourable James Wilson, 3:76]

Yes, America had laws that made it a criminal offense to libel a person. About twenty states still have these laws on the books. From what I have read, they are seldom used, and when they are, it is often to punish someone for accusing a police officer of wrongdoing. (Just because a law is constitutional, doesn't mean that it still makes sense.)

Joseph Story is another early U.S. Supreme Court Associate Justice. His Commentaries on the Constitution of the United States (1833) is pretty clear that freedom of speech is a protection against prior restraint:

That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. This would be to allow to every citizen a right to destroy, at his pleasure, the reputation, the peace, the property, and even the personal safety of every other citizen.... It is plain, then, that the language of this amendment imports no more, than that every man shall have a right 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. [Commentaries on the Constitution of the United States (1833), 3:731-2]

I would call this the anti-ACLU understanding of the clause.

Similarly, William Rawle's 1829 A View of the Constitution is quite clear on this as well:

But the liberty of speech and of the press may be abused, and so may every human institution. It is not, however, to be supposed that it may be abused with impunity. Remedies will always be found while the protection of individual rights and the reasonable safeguards of society itself form parts of the principles of our government. A previous superintendency of the press, an arbitrary power to direct or prohibit its publications are withheld, but the punishment of dangerous or offensive publications, which on a fair and impartial trial are found to have a pernicious tendency, is necessary for the peace and order of government and religion, which are the solid foundations of civil liberty. [pp. 123-4]

William Waller Hening's The New Virginia Justice, Comprising the Office and Authority of a Justice of the Peace (Richmond: Johnson and Warner, 1810), which seems to be Virginia Justice of the Peace for Dummies, as a discussion of criminal libel starting on page 373 that is pretty devastating to anyone that wants to argue that public officials deserve less protection than private citizens from defamation. The First Amendment wasn't applied to the states yet, but it would passingly odd if the First Amendment created a substantially different standard with respect to libel than the existing state laws.

Whatever might be said for the ACLU's view of freedom of speech and of the press, I can't find any Framers or early Republic assertions of the ACLU's position of effectively unlimited authority to publish virtual child pornography, obscenity, libelous attacks on public figures, and broad definitions of speech that include burning flags, topless/bottomless dancing, etc.--quite the opposite.