The Meaning of Freedom of the Press at the Founding
Courts and scholars have long debated the meaning of the Constitution’s Press Clause. One popular theory — that it only protects access to the press as a technology — fails to tell the whole story.
The First Amendment protects both freedom of speech and freedom of the press. While the Supreme Court has spent generations unpacking the meaning of freedom of speech, it has remained mostly silent on what, if any, independent protections the Press Clause provides in addition to the Speech Clause.
One obvious view is that the Press Clause protects “the Press” as an institution (the news media, today) by providing it special protections to encourage gathering and reporting the news. At times, the Court has rejected this idea that “the institutional press has any constitutional privilege beyond that of other speakers.” And, at other times, it has suggested that, in fact, the press enjoys such special protections.
First Amendment scholars have split too. One side argues that the Press Clause simply protects everyone’s right to print their speech through the press. The leading voice, Professor Eugene Volokh, maintains that the Founding generation understood the Press Clause “as securing the right of every person to use communications technology.”
Another side, represented by Professor Sonja West, contends that the Press Clause protects “the Press” as a function (and, on that basis, as an industry that fulfills that function). In other words, West argues that Volokh is attempting to answer the wrong question altogether. What’s important is not what “the Press” meant, but rather why the Founders sought to protect “the Press” (whatever it may mean) in the first place.
Based on this, West argues that “the Press” today should be specially protected because it embodies the values of the Press Clause by enabling self-governance: “In the world of the late-1700s, protecting the use of press technology was inextricably linked to press functions. In other words, it all overlapped — using the technology, checking the government, and engaging in self-expression.”
Who is right? That’s a question that has long bothered me. But only recently have I set out to answer it through an exhaustive review of primary source materials. Before getting to my own research though, I want to offer some first impressions on Volokh’s and West’s approaches.
West’s view is attractive from a logical standpoint. What should matter in determining the scope for constitutional protections today is not what those rights meant in a world where voting rights were severely restricted, most were illiterate, and vast swaths of a population were subject to de jure or de facto subjugation. Shackling us to that world is outrageous. Rather, we should consider why those rights were protected in the first place.
Still, West marshals primarily — though certainly not exclusively — secondary historical scholarship about socio-economic and political affairs in early America. She thus provides limited direct evidence of the meaning of “the Press” at the Founding. From prior scholarship, she infers how early Americans must have viewed “the Press.” As a result, there is a risk that she draws the wrong inferences.
Volokh suffers the same problem, though in a much greater degree. The 18th century evidence on which he relies, a handful of cases, treatises, and state constitutions, is remarkably limited both quantitatively and quantitatively. As a result, many of his conclusions are surmise (“It seems hard to imagine . . .”; “This, though, seems like . . .”). Yet, he confidently concludes that “calls for specially protecting the press-as-industry have to look to sources other than text, original meaning, tradition, and precedent for support.” A bold conclusion in the circumstances.
In sum, largely absent from this scholarship is evidence of what 18th century Americans actually said (and thus thought) about the Press and its liberty. To fill this gap, I have begun identifying and reviewing every reference to the liberty and freedom of the press available in digitally archived newspapers from 1765 (the year the Stamp Act went into effect) to 1800 (the year the American public repudiated the Sedition Act by electing Thomas Jefferson President).
There are hundreds and hundreds of such references, so my research is ongoing. Some five hundred articles in, however, I’m able to offer three tentative conclusions as to the meaning of “the Press” in the mind of early Americans and from that some conclusions as to what the liberty of the Press meant to them.
Before that, though, a note of caution: early Americans’ own words in these articles demonstrate that their understanding of the meaning of the Press — and by extension the liberty of it — was nuanced and, likely, not susceptible to a single definition. One writer admitted as much in 1782, writing that “no two men think alike” about it. On that basis, query the folly of any scholar declaring the original meaning of the Press or liberty of it.
With that out of the way, these early accounts suggest at least three strands of complementary thought as to the meaning of the Press. It provides a realistic if less tidy reconstruction of how the Founding generation understood the Press and its liberty. History is not, after all, a monolith and rarely offers a definitive answer to a question — no matter what recent Supreme Court precedent might suggest.
First, as both West and Volokh correctly surmised, Americans understood the Press as referring to the printing press itself, as a technology. This is consistent with early descriptions of the Press as a vehicle, a channel, and an engine for the dissemination of ideas. As one individual wrote in 1767, “I am surprised to hear an Objection against the Freedom of your Press, since ’tis but a Vehicle necessary to convey to the Public, those Things which every free Subject has Right to.”
Based on this understanding of the Press as an inanimate technology, Volokh argues that the liberty of the Press merely secured “the right of every person to use communications technology.” In other words, it protected the right of every individual to use the press. And, this too is supported by the historical record. As An Anxious Bystander wrote in 1775, “let it be free as air, and give admission to all.”
But that is not the whole story — far from it.
Second, and consistent with West, the Press in early America also became synonymous with printers themselves, or the conductors of the Press. More specifically, it became synonymous with printers’ exercise of editorial independence. Early on, ones like William Goddard maintained that they were “zealous and inflexibly determined to maintain the Liberty of the Press, on free and impartial principles, in spite of all opposition.” This was a common theme — that printers were, essentially, neutral conduits.
While this might seem to go hand-in-hand with Volokh’s press-as-technology view, no printer exercised true editorial neutrality. This significant undercuts Volokh’s central thesis. If, as a matter of fact, the Press was not open to all, then how can Volokh be right that liberty of the press was understood to protect every man’s access to it?
As West points out, Goddard also wrote that the liberty of the Press did not include “publishing all the Trash . . . which every anonymous Scribbler” might send in. And other printers, while claiming their presses were open to all on an impartial basis, qualified that invitation by specifying that, in fact, they were open only to those “whose principles coincide with that of the Revolution.” (Tories need not submit.)
As time wore on, as West rightly found, the public recognized printers maintained editorial independence over what came out of the press. One member of the public said in 1779 that he left it “the printers to be governed by decency in the choice of the pieces they may publish.” Another said in 1776 that, especially when news was slow, “It is the right of every publisher of a news-paper to insert in it upon his own judgment and choices . . . whatever he thinks will recommend his paper to his readers.”
In all of this, printers, one said, owed a “duty” to their “paper” and, another said, to his “readers.” They satisfied that duty by choosing what to include and, as important, what to exclude. And they claimed special privileges, like refusing to identify authors of certain pieces, to satisfy this duty. This evidence is difficult to reconcile with Volokh’s limited view of press freedom.
Third, the Press was understood as the font of ever-important newspapers and their political, social, and economic information. Volokh, however, argues that “the Press” cannot mean the press as we understand it today because printers’ shops of the 18th century are so unlike today’s news organizations: “Woodward and Bernstein were many decades in the future.” On this basis, he argues that it is “unlikely that the Framers would have secured a special right limited to this small industry, an industry that included only part of the major contributors to public debate.”
Here, more so than anywhere , the historical evidence contradicts Volokh’s surmise. While Volokh diminishes the role of newspapers, the primary evidence is to the contrary. Newspapers were the lifeblood of early America. They were described in lofty terms — above other media like books. Contrasting newspapers to books, one writer said that newspapers comprised “the various essential transactions of the whole world.” These gazettes, advertisers, and packets were designed as “vehicles of intelligence.”
As a result, regulations on newspapers (whether by taxes, like the Stamp Act, or by interference with their distribution) were seen as especially invidious precisely because they interfered with individuals’ access to the news and intelligence of the day. As one writer explained in response to a proposed post reform, “It is not only our Letters that are liable to be stopped and opened by a ministerial Mandate . . . but our News-Papers, those necessary and important Alarms in Time of public Danger, may be rendered of little Consequence.”
Nor were News-Papers so far removed, as Volokh suggests, from today’s newspapers. They included correspondence (read: news) collected from around the Colonies and across the Atlantic that printers sometimes printed verbatim and, sometimes, edited into short summaries. In many ways, they are analogous in form and substance to newspapers today — even if they relied on correspondence for news (from which, in any event, we get today’s “correspondent”) as opposed to a newsroom of reporters.
In conclusion, the meaning of the Press was more than any one thing and surely more than the Press as a technology. Instead, the Press was understood as an amalgam (or as West called it, the “original layers” or “overlapping concepts”) as a technology, of printers’ editorial independence, and of newspapers themselves.
From this, we can draw implications as to why the Founders sought to protect the liberty of it. It was not, as Volokh suggested based on his press-as-technology theory because of the function it served in allowing individuals to distribute their opinions. Indeed, this reductive, libertarian conclusion discounts the foundational role that the Press played in early America.
Rather, the Press in the United States and the liberty of it was inseparable from republican thought and revolutionary spirit. Taken together they were “the weapon which conducted [citizens] to freedom” and helped to maintain it. Printers, exercising editorial independence to inform the public of the news through their presses, stood, as one wrote, as protectors of that “valuable centinel of freedom” that was “doubtless one of the firmest barriers against tyranny.”
