False Dichotomies and the Original Understanding of Press Freedom
Late last year, I presented an American Bar Association webinar about the Supreme Court’s recent suggestion that, perhaps, we should look to the original understanding of the Speech and Press Clauses to define the meaning of those freedoms today. And, around the same time, I published a guest essay in the New York Times cautioning the Court against this approach.
For decades, our understanding of the historical meaning of the Press Clause has been stunted by a fight, both in judicial opinions and in law review articles, over the meaning of the words “the Press” in that Clause. One side argues that it means the institutional press, meaning the New York Times and the like, and the other contends that it means the technology of the printing press.
If we read “the Press” as the institutional press, then the Press Clause becomes a powerful sword that industry can wield in advocating for special rights for the press. If we read it as the printing press though, then the right becomes a broad but shallow one that guarantees a right to distribute an individual’s speech via some medium.
Neither view, however, captures the historical understanding of press freedom — a history that bristles with complexities. Nor is either view even an appropriate way to think about historical meaning. Each places near total reliance on what is on its face an ambiguous text: “the Press.”
Professor Eugene Volokh, for example, has found numerous instances of “the Press” referring to the printing press. But there are also examples going the other direction — persuasive ones. In 1790, Elbridge Gerry told his colleagues in the First Congress, the same congress that adopted the First Amendment, that newspapers, or in his words “a free press,” “is of the greatest importance to the people.”
And even if the text was unambiguous, defining the term “the Press” does not tell us what the “freedom of the Press” meant at the Founding.
Instead, to understand the history of freedom of the press, we have to move beyond dictionary definitions and do the hard work of identifying how that freedom manifested in the real world of early America. This is not a question of bean counting sources until you outmatch the other side. This is the roll-up-your-sleeves, dust-off-those-calfskin-books, and walk-in-the-shoes-of-Founding-era-Americans kind of work; to think as they thought.
The work to be done is monumental because history is not a monolith. To think that everyone thought the same way about press freedom at the Founding is to embrace naivete. History is complex and, sometimes (even oftentimes) contradictory. The enterprise is made more difficult because we’re dealing in the evolution of ideas over many years, even if we limit our inquiry to the Founding.
This also makes historical meaning susceptible of abuse by those who want to construct a convenient instead of an accurate historical past.
We have seen too often how easy it is for litigants — motivated not to uncover history for history’s sake but rather to win the argument — to pick and choose facts that just so happen to support their position. Facts that do not are ignored. A fictional history is written. Judges and scholars are not free from this kind of motivated reasoning either.
These idiosyncratic views of history are then sold to the public as “original understandings” of the Founders or the Founding generation. Self-serving opinions laundered through history books as authoritative historical fact.
Despite this, the Court clearly believes that history (if not originalism) has an important place in the process of constitutional interpretation. We see it especially in the Second Amendment context. But it has been making inroads in the First Amendment context too. So irrespective of whether the Court’s increasing reliance on history is prudent, it is here to stay. Lawyers and scholars cannot ignore this trend.
This post responds to that trend. It has two purposes. First, it rejects the unhelpful debate over the bare meaning of the words “the Press” at the Founding. Historical meaning cannot be divined through dictionary definitions or unadorned statements from the Founding. Yes, text is important, but its meaning can only be understood in historical context, the political, social, and cultural world of the Founding — not through lonely words on a page.
Second, I turn to some of that context and identify a raft of examples showing how the Founding generation dealt with newspapers in a variety of contexts. Sometimes these are direct conflicts between the press and the government. Sometimes they merely reflect developing norms vis-a-vis the government and the press. Sometimes they suggest a law out of step with the times. Sometimes they suggest the government has certain obligations to encourage the newspaper press. And sometimes they suggest antagonism towards the press. But together they tell a story of press freedom at the Founding.
This is not the whole story of the nature of press freedom at the Founding. This is a Medium post. But these examples call into doubt the retellings of liberty of the press at the Founding that ignore historical context. In them, we see a real-time negotiation with the meaning of press freedom. This freedom presents itself less as a fully-fledged concept that can be identified with certainty and more as a cluster of ideas still forming into a greater constellation.
Yet, the animating principles behind these ideas are easier to identify: the idea of the press as a check on the government, as well as the related idea that newspapers are a predicate to a republican government as they provide the sovereign people with necessary information about their government. We also see a theme of an uneasiness with government interference with the press — even from those in the government.
These are recurring themes found throughout the Founding generation’s deliberation over the meaning of press freedom. And in thinking about history as a tool of constitutional interpretation, it is these themes, not one-for-one analogs of a distant pass, that should guide our understanding of press freedom today. What matters, as the Court has put it, are not dead ringers between 1791 and today but rather the historical “principles that underpin” our traditions.
Press-as-Industry vs. Press-as-Technology: the False Dichotomy
Before we can get to the history of press freedom, we have to first hit on the head once and for all the presumption that we can solve the puzzle of the historical meaning of press freedom if only we can choose a side between “the Press” as an industry or as a technology. Not so.
The problem with this dichotomy is that it’s based on faulty presumptions. First, the dichotomy promises that if we can just define “the Press” in the Press Clause we can understand press freedom at the Founding— a shortcut to historical (and therefore constitutional) meaning. Second, it presumes that there are only two ways to think about press freedom at the Founding to begin with. Neither is true.
Sure, that newspapers should receive special treatment because of the reference to “the Press” in the Press Clause makes some sense. As Justice Potter Stewart said in arguing in favor of this reading, newspapers have played an important role “in the political and social life of our country” throughout our history. Our early history, including the press’ push for independence in the run up to the Revolution, the controversy over the Sedition Act, and the plight of the abolitionist press, proves as much.
Stewart recognized that one might read “the Press” differently. It could, he noted, be read as the technology of the printing press . But he rejected that interpretation, as giving “insufficient weight to the institutional autonomy of the press that it was the purpose of the Constitution to guarantee.”
The primary weakness of Stewart’s argument, however, is that it presumes its premise. It presumes that “the Press” in the Press Clause meant the “publishing business.” But Stewart never provides evidence from the Founding to support that reading. Once we recognize that, and if we truly are looking to historical meaning, the force of Stewart’s argument as a matter of historical fact falls through the floor irrespective of its force otherwise.
Professor Volokh has championed the contrary view, asserting that the Press Clause “does not protect the press-as-industry, but rather protects everyone’s use of the printing press.” In other words, “the First Amendment rights of the institutional press and of other speakers rise and fall together.” On this reading, Volokh rejects the idea that the institutional press might be the beneficiary of “special rights.” And, he concludes that advocates for “specially protecting the press-as-industry have to look to sources other than text, original meaning, tradition, and precedent for support.”
Volokh’s argument is as flawed as Stewart’s. It too presumes its premise. It assumes that if the Press Clause protects only the printing press as a technology then it cannot be the source of rights specific to printers, journalists, or more generally journalism.
But why? Even on its own terms this argument is undeveloped. As an initial matter, it was printers — the Founding generation’s journalist — who were in control of the printing press. To say that the Press Clause protected the right to use the printing press surely then must account for the role of the owners and operators of the press. But Volokh fails entirely to account for this role.
Volokh’s evidence is also unpersuasive. He relies on just a handful of sources from the Founding. The sources he does cite from that period are offered without important context. Volokh also failed to account for the nature of the newspaper industry — an industry that occupied a singular place in revolutionary America — in his work. In an article about whether the First Amendment specially protects the press or not, this omission is striking.
And even if we assume that Volokh’s conclusion follows and that it is supported by historical facts, problems remain. The most obvious one is that it rests on the false premise that any rights specific to the press are necessarily “special” rather than merely different.
That First Amendment protections might manifest differently — not specially — in different contexts should be hardly controversial. This is especially so to someone like Professor Volokh who has written so prolifically and persuasively about the First Amendment’s differing applications to all sorts of contexts and problems.
In Volokh’s defense, his emphasis on special rights in this context specifically may simply be reflective of Stewart’s thesis. But this just goes to show that the dichotomy they are fighting over frustrates rather than clarifies our understanding of press freedom.
Step back for a second. That the mercurial protester is protected differently by the First Amendment relative to the reclusive author should be unremarkable and unobjectionable. Recognizing as much is not claiming special rights for either the protester or the author. Rather, it is recognizing different protections depending on the context of the expression. Should the reclusive author venture out to join a protest, he too could claim the same protections as the mercurial protester.
On the same basis, that the First Amendment might apply differently — again, not specially — to a journalist (that is, someone engaged in journalism) should be equally unremarkable. But Volokh’s thesis pushes back against this basic idea for some unstated reason.
Nor does recognizing that the First Amendment might protect a journalist differently than a non-journalist require us to write everyday citizens out of the Press Clause as Volokh argues. Maybe the Press Clause protects journalism irrespective of whether the journalist is a member of some (ill-defined) institutional press or out on her own? Or, maybe that Clause protected those engaged in journalism and those who merely used the printing press to distribute their own speech by, for example, letters sent to printers. The Clause’s protections might just have operated differently, perhaps, because the printer and the letter writer were engaged in different forms of expression.
Volokh never confronts a Press Clause like this because he, like Stewart before him, views the Press Clause as an either-or proposition.
Nor does Volokh’s article even purport to consider “the scope of the right.” It actually disclaims any such inquiry. But to understand the meaning of press freedom at the Founding, we have to consider the scope of the right. When did it apply? To whom did it apply? In what ways did it apply? To understand whether journalism was within its scope of protections, we have to conduct the historical inquiry into these questions. We cannot ignore them, dismiss press-specific protections as “special,” and, relying on bare text alone, purport to declare the Press Clause’s historical meaning.
While Stewart and Volokh read the text in a vacuum, constitutional provisions do not fall out of the sky; they exist in historical context.
While Stewart and Volokh read the text in a vacuum, constitutional provisions do not fall out of the sky; they exist in historical context. Lawyers should be “very familiar with the idea that the literal meaning of a text does not deliver the full contextual meaning.”
Dissecting and describing the Press Clause’s parts without accounting for historical context is like dissecting the heart into pieces and describing the aorta on the table as a mere blood vessel. Doing so is not wrong (the aorta is a blood vessel), but it is hardly the full story. So we have to get away from the idea that if only we can define “the Press” we can solve the riddle. It’s not the case.
The varied interests that the Founding generation sought to protect through liberty of the press — including, as Volokh observes, protecting books and pamphlets as well — makes an argument for press-as-industry exclusive rights and nothing more difficult to maintain. I do not subscribe to that view. At the same time, I do not subscribe to Volokh’s view: an argument for press-as-technology rights and nothing more ignores the historical reality of the Founding.
My view does not rest on the false-choice between the press-as-industry or the press-as-technology and does not purport to suggest that there was a singular understanding of press freedom held by the Founding generation — that would be unrealistic. Unadorned phrases, whether Volokh’s “every man’s right to the press” or Stewart’s “the Press,” that are plucked from the historical context in which they were uttered tell us very little about how liberty of the press manifested in the real world of the Founding. We have to dig deeper.
The Press at the Founding
The Framing-era newspaper industry was influential and growing dramatically by the close of the eighteenth century. Alongside this expansion, the importance of newspapers’ role as a check on public men and measures came into focus.
In 1765, one reader wrote that he was never displeased with any facts in newspapers that “tend to promote the public Interests, by detecting the Views of designing Men, or opening the Eyes of the Ignorant.” In 1772, printer William Goddard said that “nothing hath a greater Tendency to secure to us that inestimable Blessing [of the liberty of the press], than the encouraging and supporting well conducted News-Papers.”
As war approached, one reader argued in favor of creating “A New-American Post-Office” to put an end to British control over the circulation of newspapers. At the time, all social, political, and commercial intelligence was being committed to the British for delivery. This meant that newspapers — “those necessary and important Alarms in Time of public Danger” — could “be rendered of little Consequence for Want of Circulation” or taxed “to a Prohibition.”
At the same time, early Americans expressed their understanding that liberty of the press protected this function. “I am conscious, that we cannot overrate the Liberty of the Press,” Americanus wrote. “The News-Papers, by which the Occurrences of the Week are communicated to the Public, claims its Origin from this happy Invention [of the printing press].”
Another linked de Lolme’s ideas of liberty of the press directly to newspapers in America: “From these quotations we may easily perceive the great advantages the people derive from newspapers, in which the most important political subjects are publicly discussed.”
One printer, reflecting on his time running a newspaper, told his readers that he would “not despair, as long as . . . America enjoys the liberty of the press.” And one subscriber, angry at the coverage in one paper, said that the only thing preventing him from cancelling his subscription was that “it might be a means of discouraging the liberty of the press.” (Sources for these quotations and most others in this post can be found here.)
Early Americans thus linked newspapers directly to the liberty of the press. The question then becomes, so what? As suggested, there’s no easy way to answer that question. Instead, we have to look to the negotiations engaged in by early Americans who confronted conflicts between the interests of the press and countervailing forces to understand what press freedom as applied to newspapers meant.
1. Taxes on Newspapers as Infringements on Press Freedom.
It was precisely because of the importance of newspapers that colonists so violently opposed the Stamp Act of 1765. John Fothergill, an English physician, explained in a pamphlet excerpted in American newspapers that before the Act newspapers “being cheap, came into many hands; and strays, in their wilderness country, were often by this means recovered.”
The Act risked this. Newspapers would survive in some places, but in others it would be too expensive to operate them, leaving “the poor American, who needs [newspapers] most . . . least in his power to recover his substance, through this easy and effectual means.”
Colonists thus understood the Act as a restraint on “liberty of the press in America.” When colonists “found the privileges which they deemed most sacred were to be abolished for ever,” it was not surprising that “persons bred up almost in independency, and full of republican sentiments” objected.
It was the fight over the Stamp Act of 1765 that first linked liberty of the press to the right of newspapers to be free from certain taxes. Taxes on newspapers were derided as unconstitutional intrusions on printers’ right to circulate newspapers to the public, while stamp taxes on, for example, deeds and bonds were not challenged.
“In the light of all that has now been said, it is evident that the restricted rules of the English law in respect of the freedom of the press in force when the Constitution was adopted were never accepted by the American colonists.”
As one citizen wrote when Massachusetts considered imposing its own stamp tax in the 1780s, “I have not the least objection to the stamp of deeds, bonds, policies of insurance, &c. in taxing them; . . . But what I aim wholly at, is news-papers.” Another citizen opposing the Massachusetts act invoked liberty of the press and “pleaded the inexpressible advantages derived from the free circulation of newspapers.”
Relying on this history, the Supreme Court has struck down modern-day analogs to these early newspaper taxes. As the Court held in Grosjean v. American Press Co., “In the light of all that has now been said, it is evident that the restricted rules of the English law in respect of the freedom of the press in force when the Constitution was adopted were never accepted by the American colonists.”
Instead, the First Amendment precluded not only prior restraints on the press but also more indirect restraints, “including that which had theretofore been effected by these two well-known and odious methods” of stamp taxes.
2. Access to the Government Officials and Affairs.
The right of access to government officials and proceedings was also linked to ideas about press freedom as early as the first Congress. In 1789, Aedanus Burke, a representative from South Carolina, made a motion to adopt resolutions that would have censured newspapers that allegedly “misrepresented” the House’s “debates in the most glaring deviations from the truth.” At the time, shorthand reporters were allowed to attend the House “at the very foot of the Speaker’s chair.” This, Burke argued, meant that their reporting carried with it the sanction of the House. As such, he moved to have the reporters excluded from the House.
Other congressmen opposed the idea. One argued that there were undoubtedly errors in the reporting, but that it was not a reason to prohibit the printing of their debates. In fact, despite newspapers putting “into his mouth sentiments which his heart never felt, nor his head comprehended,” he would never think to suppress the “valuable information” that came from reporters.
Another objected “to driving the gentlemen who were at the foot of the Speaker’s chair into the gallery.” He thought this was just a first step towards driving everyone from the House. It was well known, he said, that the reporters “were admitted by the tacit consent of the members, and he would not acquiesce in a violent removal.” Rather than take further action, this representative contended that the making of the motion was “sufficient revenge” without taking further action on it.
Removing reporters from the floor of the House, a representative said, was “an attack upon the liberty of the press.”
Having heard from his colleagues, Burke withdrew his motion. But that was not enough to put an end to the matter. Another congressman rose in response arguing that there should be a decision on the motion because it involved “an attack upon the liberty of the press.” Another wondered if Congress should formally authorize reports of the House’s proceedings.
At this point, James Madison, who had months before proposed what would become the First Amendment, rose. He said that it was “improper to throw impediments in the way of such information as the House had hitherto permitted.” True, newspapers misrepresented their debates in his eye too, but “it gave him no concern, because he was not responsible for what was published, as it was done without his interference.”
No motion was passed.
But, when the next session commenced, the issue arose again. The reporters, of their own accord, “had withdrawn from the seats they held in the House, to the gallery.” One representative, John Page, wondered if the House might tacitly agree to their return, thinking that the press had “modestly withdrawn” after the debate last session supposing that “the sense of the members was against their sitting in the House.”
Not so, Page said. The newspapers had, in fact, “given great satisfaction to many of the constituents of that House” and the House had “been applauded for its conduct” last session. He wished for the reporters to return to their seats “lest it might be insinuated by the jealous enemies of our Government, that the House of Representatives were more republican and indulgent the last session than this.”
Another representative agreed. The press had “given great satisfaction to the people of America, and it was a satisfaction of which he would not deprive them.” True, it was up to the House, this representative thought, to determine who sat in its chamber, but he added that tacit not explicit approval was all that was required. Thus, he would leave it to the reporters themselves to decide whether to enter the chamber, arguing in favor of “the admission of such persons as thought themselves qualified, and were inclined to take down and publish their debates and proceedings.”
3. Congress Debates Using Public Funds to “Encourage” a Free Press.
After the controversy over newspaper reporters’ access to the floor of the House, the House turned its attention to whether it should buy specific newspapers for its members. This debate was, essentially, a continuation of the earlier one, forcing members of the House to consider the importance of newspapers in a republican government.
Eventually, it was proposed that each representative could use public funds to buy “three public newspapers printed in this city, at their own election — the papers to be left at their respective lodgings.” That motion passed, but not before Elbridge Gerry, who at the Constitutional Convention proposed a bill of rights, and Madison voiced their opposition.
Gerry emphasized the importance of newspapers, arguing that “a free press is of the greatest importance to the people, and all proper encouragement out to be given it.” “The most beneficial consequences,” Gerry argued, “had resulted to the Government from the information which their constituents had received through” newspapers.
I am “in favor of taking the whole of publications, or none; as taking a part would be giving a preference to particular presses, and would savor of partiality.” — James Madison
If representatives received papers from “only one or two printers” rather than buying up a newspaper from all printers, Gerry feared “it would preclude the public, in all probability, from that full and impartial information to which they are entitled” and would “tend to giving the House an undue control over the press, or perhaps make it the tool of a party.”
James Madison agreed. In debate, Madison said that Congress should take “the whole of the publications, or none,” fearing that “taking a part would be giving a preference to particular presses, and would savor of partiality.”
4. Government Subsidies for Distribution of Newspapers.
The carriage of newspapers sparked controversy in early America as well. In Pennsylvania, the circulation of Franklin’s paper was limited because his competitors controlled the post and sought an advantage. Printer William Weyman, in 1767, complained of discrimination in circulation of newspapers by post officers as well. He lamented that each had chosen their preferred paper and were “eager that none should take any other Paper but theirs.” He characterized this discrimination as a “Grand Attempt on the Liberty of the Press.”
When Franklin became post master he ordered post riders to carry all newspapers impartially, saying that the circulation of newspapers was “useful to Government, and advantageous to Commerce, and to the Publick.”
Against this backdrop, Congress passed the Post Office Act of 1792 and gave the newspaper industry a special subsidy to ensure their distribution among the public. While the dispensation was a statutory one, it was debated on the understanding that Congress should proceed with caution “lest some infringement of the liberty of the press . . . be the consequence.”
The Act prohibited postal employees from choosing which newspapers would be delivered. It also allowed printers to send each other newspapers without postage. And, it set lower rates for the delivery of newspapers than other letters and packages. Long distance delivery was discounted too. And, while the Act prohibited the private establishment of a courier service that interfered with the revenue of the federal post office, it specifically exempted newspapers from this prohibition.
The Post Office Act as subsidy for newspapers suggests “the early acceptance of government favoritism of the press.”
5. Omission of Newspapers from the First Copyright Act.
Congress also favored the press by leaving it alone. Specifically, Congress omitted newspapers from the first Copyright Act. This appears not to be a demerit or, as has been suggested elsewhere, evidence that newspapers were viewed as less important than books or pamphlets. Instead, omitting newspapers made it possible for printers to continue to crib from each other’s reports all to the benefit of the reading public.
At the Founding, there existed a culture of copying where printers relied on and copied each other’s news reports. Newspapers were interdependent and news was “a shared resource.” A government-enforced monopoly like copyright, one scholar wrote, “would have been unthinkable” in this world where the Founders “viewed the circulation of information about political and commercial affairs as vital to the young republic.”
As the same scholar explained: “There is no evidence to prove that lawmakers considered including newspapers in the copyright statute and then decided not to, but there is every reason to believe that granting copyright to newspapers would not have made sense to them.” “Copying was what enabled news to spread” and the policy in early America was to “encourage printers to exchange newspapers in order to obtain news from other places and republish it for their local readers.”
6. Disallowing Franking as a “Deadly Stroke at the Liberty of the Press.”
In 1791, Congress also considered the effect that doing away with franking, the right of members of Congress to send mail for free, might interfere with the distribution of newspapers.
One member argued that the end of franking for newspapers would level a “deadly stroke at the liberty of the press.” Members relied on the privilege to distribute newspapers to their constituents. In fact, it was said that members of Congress were duty bound to disperse newspapers among those who otherwise could not obtain them.
Newspapers were so valued that too often they were stolen along post routes. But, if they were transmitted under the protection of a frank, there was a chance that they would not be plundered like the “common packets of news-papers.”
One member argued that the end of franking for newspapers would level a “deadly stroke at the liberty of the press.”
As a representative explained, “Although the citizens who live at the seat of Government, and have daily opportunities of learning from the newspapers what public measures are going forward, may not be materially affected by the abrogation of the privilege, yet the case would be widely different with those who live at a distance . . . .”
The United States was “a Government of opinion” that required the “fullest information” to be distributed among the people. Taking away franking would frustrate the right of citizens “to expect information, not only of the acts of Government, but also the principle upon which they were grounded.”
Disallowing franking would “stop the channels of public information.” And, it would be highly dangerous, one argued, “to deprive the people of information respecting the measures of the General Government.” It was this — the loss of information from newspapers not distributed — that was of primary concern and not the “diminution of revenues” for the post office that was a “secondary” concern.
Congress voted to continue franking.
7. Proposals to Limit Liability for Printers.
Americans also considered on what terms printers should be subject to liability for what they printed. In a noteworthy example, New Jersey governor William Livingston argued in favor of press-specific protections from libel lawsuits for printers engaged in gathering and reporting the news. Livingston observed that “no man should be suffered to propagate, with impunity” injurious falsehoods “pass[ed] through the particular vehicle of the press.”
Drawing a contrast, however, he added, “But that a man ought to be criminated even for this, is not universally true. Printers often innocently publish what is false, believing it to be true.” If printers were held liable for everything they published in good faith that turned out to be false, Livingston did not know “what news they could give us, without first applying to the court of chancery for a commission to examine witnesses in foreign parts, to ascertain the facts they find already published in the gazettes from which they select their intelligence.”
So if a New Jersey printer reprinted a Maryland printer’s article that a man was executed for burglary, he should not be called to account even if it turned out that the man was no burglar. This was, essentially, an early argument for an actual malice rule that the Court later adopted in New York Times v. Sullivan.
8. Acknowledgement that Printers Had a Right Not to Disclose Names of Sources.
Printers, the public, and even government officials also contended that printers had a liberty interest in being free from the compelled disclosure of their sources . Efforts to compel the disclosure of newsgathering information were deprecated as “dangerous stretch[es] of power” that threatened liberty of the press, and many are listed in my article referenced above.
Readers commended printers who buried authors’ names “in inviolable Secrecy.” Printers promised they would “never disclose the name of any author” because of “obligations naturally arising” from their profession. They would always refuse “to deliver up any author, without his permission.” As “faithful guardian[s] of the Liberty of the Press,” they were “bound in honour not to suffer the secrets of the press to be extorted” from them. Their sources were “a profound Secret.” Even public officials questioned whether pursuing printers for their sources would violate press freedom.
One notable example is that of William Duane. In 1800, Duane refused a Federalist-controlled Senate attempt to force him to divulge his source of information about certain conduct of the Senate. In a letter to Thomas Jefferson, then-sitting as the President of the Senate, Duane explained that he must refuse the Senate’s attempts to question him. He told Jefferson that he was “bound by the most sacred duties to decline any further voluntary attendance upon that body, and leave them to pursue such measures in this case as in their wisdom they may deem meet.” And, he told his readers, “We consider the security of the press of at least equal moment with the privileges, real or assumed, of the Senate.” Duane was, he wrote, “bound to maintain that freedom established by the Constitution.”
Charles Pinckney, once the youngest member of the Constitutional Convention, opposed the Senate’s attack on Duane. The action, he said, raised important questions like the nature of the privileges of Congress and the liberty of the press. It was “well known that our Constitution intended the press to be free; to be the means of communicating the acts of the Government, and of commenting on them where necessary.” Pinckney felt pride “in saying that in no country has the press ever been as free as in United America.”
“Here the right to investigate the conduct of the Legislature, and of official men, is not only recognized and established, but the constitution seems to require it as a duty, from the citizens,” Pinckney said. The Constitution said to its citizens “these are men periodically delegated by you to manage your public concerns — to you, and you alone, they are accountable.”
Pinckney then asked why a government that means well would ever fear the press? To a good government, the press was the best way to communicate with the public, and “public bodies are public property; and so indeed are public men.” “Men who engage in public life,” he added, “must expect to be exposed to anonymous, and sometimes avowed attacks, on their principles and opinions.”
The Senate, Pinckney observed, had been held in secret until State Legislatures insisted on the doors “being thrown open.” Opening the doors was done with the intent that the Senate’s proceedings be “subject to the inspection of such of our citizens as choose to attend.” States recognized that few of their far flung citizens could attend the proceedings of the Senate. Notes of Senate debates were to be taken “and printed in the gazettes” to be sent “to every part of the Union.”
Duane dared to do just that — report on the Senate. Now he was to be threatened with prosecution for not divulging his source?
Pinckney urged: “if a printer is to be seized, and dragged to your bar, and perhaps imprisoned for a mistake . . ., I ask you what printer or reporter will take your debates?” Must he “give every word and observation with exactness” and be held to a Senate trial for “the smallest deviation” from the proceedings? If so, the “doors may just as well be shut again.”
William Cocke, another Duane supporter, responded to Pinckney’s marathon, cautioning that even if the Committee was given subpoena power, if Duane disregarded its commands to divulge the source, how was the Committee going to enforce its contempt power, if it had any? “Suppose [Duane] declines to inform your committee of the mode through which he obtains his information; he says . . . his prior engagements do not permit him to divulge it to you; will you punish him for contempt?,” Cocke asked his colleagues.
While you are straining his muscles and dislocating his joints, what becomes of the grand palladium of American freedom?
Suppose, “you possessed of the physical power necessary to procure the information you require by an application of the torture; while you are straining his muscles and dislocating his joints, what becomes of the grand palladium of American freedom?”
The citizens of Philadelphia supported Duane too by sending the Senate letters urging it to reconsider its proceedings against him. One letter opened with an indictment of the Senate as intruding on press freedom in attempting to uncover Duane’s source or prosecute him for refusing to do so: the liberty of the press was, the citizens of Philadelphia said, “the surest safeguard of the right and liberties of the people.” Thus, any friend of republicanism could not view “without strong emotions of surprise and regret, the doctrines and practices of the privileged bodies of Europe about to be adopted in this free country against that sacred bulwark of republican liberty.”
The entire list of signers has been lost, but the Duane’s paper reported that there were “upwards of a thousand signatures presented on that day, and as many more” presented in the following days. Duane never disclosed the source.
9. The Sedition Act’s Infringement on the Liberty of the Press.
Finally, we have the Sedition Act, which was adopted during the Adams administration to throw the election of 1800 in his favor by imprisoning critics of the administration. The Sedition Act’s relevancy to liberty of the press and newspapers has been dismissed by conservative scholars as merely a controversy over state’s rights. This entirely ignores historical reality.
A primary target of the Sedition Act were newspapers and, specifically, republican newspapers. The history is so clear that the point hardly needs to be belabored. Thomas Greenleaf, Ann Greenleaf, David Forthingham, William Durell, Charles Holt, Anthony Haswell, Judah Spooner, Alden Spooner, Thomas Cooper, James Callendar, and William Duane were all owners, printers, editors, or writers for newspapers. All of them were targeted for political retribution by the Adams administration.
Wendell Bird, our most prolific and detailed historian on the meaning of press freedom at the Founding, wrote, “No Republican newspaper criticizing the administration and the Sedition Act was too small.” Opposition to the Sedition Act was itself unconstitutional. So when one paper quoted the First Amendment and sarcastically wrote that the politicians who had voted for the Act “were completely right, in abridging that licentiousness, wickedly called the liberty of the press,” they became a target.
The Act was viewed, at least by those outside the administration, as striking at the heart of republican government itself. As one printer wrote after quoting the First Amendment, “citizens ‘must inspect narrowly into the conduct of those they employ’ in government . . . and yet by the Sedition act they were ‘deterred from animadverting on the conduct of those employed in public affairs.”
Unfortunately, the law worked. Printers were sent to jail Republican newspapers shuttered. Ann Greenleaf eventually sold her newspapers. Others closed too. These prosecutions, Bird concluded, were nothing but “political prosecutions of Republican enemies.” Even pro-administration newspapers joined in on the prosecutions, sending allegedly offending letters to the United States Attorneys’ for prosecution.
The effect of the Act in New England was felt especially hard. As Bird wrote, the campaign of prosecutions resulting in “suspending Connecticut’s foremost Republican newspaper, suspending Vermont’s leading Republican paper, . . . and intimidating two printers by leaving their 1798 indictments open for a year.”
“Although the Sedition Act was never tested” by the Supreme Court, “the attack upon its validity has carried the day in the court of history.” As Jefferson said in 1804, “I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”
The fines levied were repaid on the premise that the Act was unconstitutional. By the 1830s, the constitutional invalidity of the Sedition Act was a matter “which no one now doubts.”
From this history, Bird concluded that the battle over the Bill of Rights and the Sedition Act established in the United States a “broad understanding” of press freedom and “spread awareness of the danger of arbitrary power.” In the end, the “Alien and Sedition Acts remain an indelible stain” on the Adams administration. As Bird eloquently summed it up:
Successfully passing and enforcing the Alien and Sedition Acts were costly victories for the Federalists. Unsuccessfully opposing passage and defending martyrs under those acts were priceless defeats for the Republicans.
Concluding Thoughts
The fight over the meaning of “the Press” has obscured the history of press freedom at the Founding. Contrary to Volokh’s argument, we cannot understand freedom of the press without understanding how the Founders navigated questions relating to printers and the press. In these examples, the liberty of the press looms over questions relating to the proper relationship between the press, on the one hand, and the government, on the other.
“Rather than asking the specific question of ‘what’” early Americans meant by “the Press,” this post moves towards “the broader question of ‘why’” they sought to protect the liberty of “the Press” to begin with. Considering that printers’ newspapers were the most important and prolific material coming off the presses in early America, it should be unsurprising that we see liberty of the press invoked relative to newspapers. That printers and their newspapers were closely related to the press in early America and, therefore, closely related to the question of why it ought to be protected seems unremarkable — inescapable even.
Taking this context into account, the evidence laid out in this post suggests that the central purpose of liberty of the press at the Founding was encouraging the propagation and protection of newspapers in service of the public good — that through newspapers every citizen could better participate in the experiment of republican government in which they were engaged. Newspapers provided to the public the information necessary to make their new “Government of opinion” work.
In this, we begin to see ideas about press freedom that today we consider as a given take shape. Newspapers begin to be understood as a predicate to a republican government as they provide the sovereign people with necessary information about their government. Newspapers also begin to be understood as a check on ineffectual government. These ideas appear to be widely accepted, as we also see a theme of an uneasiness with government interference with the press — even from those in the government.
It is these historical “principles that underpin” freedom of the press in this country. Much work is left to do to fully understand these principles. Books could be written about most of these topics. So this is more an introduction to press freedom at the Founding than it is an exhaustive history of it. And, of course, as Justice Holmes reminded us in The Common Law, we should always remember that we not ask too much of history.
