A Republic, If You Can Keep It

In the early United States, Americans confronted a pressing issue: how can democratic debate and the brutish English law of libel coexist?

Matthew Schafer

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It was once said of Elizabeth Willing Powel that “her Patriotism causes too much Anxiety.”

This is the third installment in an ongoing multi-part series On Freedom Of Press In The United States; each installment can stand alone.

#1: The Attack on N.Y. Times v. Sullivan

#2: Justice Thomas and the First Fake News Statute

#3: A Republic, If You Can Keep It

#4: William Blackstone Is The Most Powerful Person You’ve Never Heard Of

#5: Originalism and a Constitutional Right to Your Opinions

#6: Actual Malice: The Bit That Justice Thomas Left Out

Out with the old, in with the new. The year is 1787 and the delegates to the Philadelphia Convention had just agreed to a new Constitution establishing a new form of government. Elizabeth Willing Powel, a Philadelphia patriot, asked after Ben Franklin, “Well, doctor, what have we got? A republic or a monarchy?” And, the apocryphal story goes, he responded, “A republic, if you can keep it.”

So there we were on the precipice, about to begin an experiment as a republic. But we were not tearing everything down to start again. The Founders decided to lay a national government over top the States. And it was in these States, to varying degrees, where the laws then existing were the product of the common law of England: those judicial decisions that over time created what we understand as the “law” today — including, as is important for our purposes, the law of libel.

But the States did not simply incorporate the English common law wholesale. We had, after all, fought a Revolution. As Supreme Court Justice Joseph Story observed, “The common law of England is not to be taken in all respects to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation.”

The common law of libel sits at this crossroad. There’s the English from whom we inherited the law of libel, which allows individuals to recover damages for…

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Matthew Schafer

Media Lawyer. Adjunct Professor/Mass Media Law at Fordham University School of Law. Twitter @MatthewSchafer