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ARTICLE: THE ORIGINS OF THE PRESS CLAUSE.



David A. Anderson *



* Professor of Law, The University of Texas at Austin. I am deeply indebted to my colleagues L. A. Powe, Jr., Mark G. Yudof, and Dwight L. Teeter, Jr., and to Professor Harold L. Nelson of the University of Wisconsin, for their thoughtful critiques of earlier drafts of this Article.

SUMMARY:
  ... Although the first amendment is often interpreted as if it read "freedom of speech, including freedom of the press," the two phrases actually are coordinate: "Congress shall make no law . . . abridging freedom of speech, or of the press." ... Its press clause read: "That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty and ought not to be violated." ... As Levy showed, freedom of speech, unlike freedom of the press, had little history as an independent concept when the first amendment was framed. ... The second basis for Levy's assertion that the press clause was to limit only Congress rests on the argument that the Framers intended that there be a federal common law of seditious libel; if so, they could not have intended the first amendment's absolute bar against Congress to apply also to the federal courts. ... One may concede that the Framers believed the states retained power to control speech and press, including the power to punish seditious libel. ...  

TEXT:
 [*456]  I. INTRODUCTION

Although the first amendment is often interpreted as if it read "freedom of speech, including freedom of the press," the two phrases actually are coordinate: "Congress shall make no law . . . abridging freedom of speech, or of the press." n1 Through most of our history the distinction has not seemed important because the terms freedom of speech and freedom of press have been used more or less interchangeably. n2 In the last decade, however, the press has begun to assert rights arising specifically from the press clause -- the right to maintain the confidentiality of sources, n3 the right of access to prisons n4 and courtrooms, n5 the right to keep police from searching newsrooms, n6 and the right to prevent libel plaintiffs from inquiring into journalists' thought processes. n7 Thus far the Supreme Court has declined to give independent significance to the phrase "freedom of the press." It has refused to give the press any more protection than an individual enjoys under the speech clause. n8

 [*457]  This is not to say that the Court has ignored the press clause. On the contrary, the Court has cited it frequently (usually in tandem with the speech clause), n9 proclaimed its merits profusely, n10 and decided important cases in the press' favor. n11 But no Supreme Court decision has rested squarely on the press clause, independent of the speech clause. The great cases on prior restraint, libel, and contempt n12 have come to be considered landmarks in the recognition of freedom of the press. But if these ever were press clause cases, they are no longer; the same results would be reached today under the speech clause. In Near v. Minnesota, n13 the Pentagon Papers case, n14 and Nebraska Press Association v. Stuart, n15 prohibitions against publication fell because of the heavy presumption against prior restraints n16 -- a presumption that also attaches when government attempts to restrain nonmedia speakers. n17 The "actual malice" rule of New York Times Co. v. Sullivan n18 apparently was not derived exclusively from the press clause because it protected the four nonmedia defendants in that case as well as the Times n19 and has since been applied in cases in which there was no media defendant at all. n20 In the contempt  [*458]  context, even before the Supreme Court invoked the press clause to protect editors who dared to criticize the judiciary, n21 it extended such protection to Harry Bridges, the longshoremen's leader. n22

At the time these cases were decided, the existence of a press clause may have been crucial. In Near, for example, the Supreme Court came within one vote of sustaining a prior restraint. n23 Absent the press clause, with its undisputed historical objective of prohibiting prior restraints, the decision might have gone the other way. Once these "press" cases had been decided, however, the Court invariably held that the same rights were available to everyone under the speech clause. n24

 [*459]  If the Court has never given the press clause independent significance, n25 neither has it foreclosed the possibility. n26 Chief Justice Burger is the only member of the Court who has expressed hostility toward the prospect of specific constitutional protection for the press, n27 and even he concedes that the question is still  [*460]  open. n28

Outside the Court, the issue has been much debated. The leading advocate of the affirmative has been Justice Stewart, who contended, both on and off the bench, that the press clause confers a special institutional status not given to any other private business. n29 The press clause, unlike most other provisions of the Bill of Rights, is in his view a structural provision designed to provide an additional check on official power. It is a supplement to the internal competition among the three official branches of government. Its role is to assure organized, expert scrutiny of all three branches. "The relevant metaphor, I think, is the metaphor of the Fourth Estate." n30 The primary effect of the press clause, under this view, is to protect editorial autonomy -- the government may not interfere with journalistic decisions, even to prevent employment discrimination or distortion of the political process. n31

Professor Nimmer has suggested that freedom of the press should be recognized as a right distinct from freedom of speech because each serves different functions. n32 The press, he argues, is the primary conduit for democratic dialogue, the process by which we inform ourselves about matters of self-governance. Speech, on the other hand, serves a self-fulfillment function, affirming the individual's dignity and integrity by protecting his intellectual freedom. These functions are not mutually exclusive, of course. In most first amendment cases the interests of speech and press coincide, in Nimmer's view. In the access-to-media cases, however, the individual's interest in communicating with the general public  [*461]  conflicts with the press' interest in controlling its content. In these situations, Nimmer argues, the courts at least should evaluate the press and speech interests separately. n33

The opposition rests largely on pragmatic grounds. Journalist Anthony Lewis argues that special protection for the press would tend to exacerbate journalistic arrogance and create a journalist-centered jurisprudence, diverting attention from equally deserving first amendment concerns of individuals; that special press rights of access to information would only stimulate more de facto governmental secrecy; and that the same rules that protect the public sufficiently protect the interests of the press. n34

Professor Van Alstyne argues that the press, by seeking special status as the public's fiduciary, would invite additional regulation on that same fiduciary theory. n35 He also believes special protection for the press would be unwise as a matter of policy. In his view, the argument for such protection also argues against it: for the same reasons that the press is more important than the individual speaker in informing the public, it is also a bigger threat to competing interests, such as reputation and fair trial. n36 Professor Lange doubts that speech and press can be satisfactorily distinguished and speculates that the interests of the press and the individual speaker would each suffer without the benefit of alliance with the other. n37

Whether the Framers of the first amendment intended an independent role for the press clause is a question not much considered by the disputants in this controversy. n38 Justice Stewart grounded his view on history, but without undertaking any extensive review of the origins of the press clause. n39 Nimmer asserted that "[h]istory casts little light on the question here posed . . . . But as we have seen in other constitutional contexts, the original  [*462]  understanding of the Founders is not necessarily controlling." n40 Lewis reviewed the literature, without pursuing his own historical inquiry, and found "[n]o historian [who] has produced any evidence to support" Justice Stewart's position. n41 Lange briefly examined the eighteenth century literature on press freedom and found the evidence for Stewart's view "not entirely persuasive." n42 He noted that neither the Fourth Estate metaphor nor the press as we know it had yet been conceived when the first amendment was drafted. n43

I make no claim that the Framers' understanding of the press clause should be controlling today; I share Professor Nimmer's view that what they said may turn out to be more important than what they meant. n44 But text and meaning ultimately are inseparable; to understand what the Framers said, we inevitably seek to discover what they meant. In this instance, history provides some clues. The press clause had a substantial legislative history in the First Congress and, more important, a number of antecedents in state constitutions and other declarations of the revolutionary period. This Article explores those sources and then reexamines, in the light of this history, Leonard Levy's conclusion n45 that freedom of the press meant no more than freedom from prior restraint.

II. THE LEGISLATIVE HISTORY OF THE PRESS CLAUSE

By legislative history, I mean the record of the drafting, amendment, debate, and passage of the press clause and its textual antecedents in official declarations, state constitutions, and proposals of state ratifying conventions. This Article is neither a history of the press in colonial and revolutionary America nor an intellectual history of freedom of expression, though it draws on both. Those histories have received considerable attention already. n46 My enterprise is not the history of freedom of the press, but the history of the language that became the press clause of the first amendment.

 [*463]  A. Pre-Revolutionary Declarations

The history of the press clause begins a generation before the actual drafting of the first amendment. n47 In 1768, the Boston Gazette, the leading organ of radicalism in Massachusetts, accused the royal governor of misrepresenting the position of the Massachusetts House to the British secretary of state. n48 The Royal Council condemned the article as a seditious libel, and Governor Bernard asked the House to turn the matter over to a grand jury for prosecution. The House, dominated by the radical leader Sam Adams, refused to do so and instead adopted a resolution stating: "The Liberty of the Press is a great Bulwark of the Liberty of the People: It is, therefore, the incumbent Duty of those who are constituted the Guardians of the People's Rights to defend and maintain it." n49 As we shall see later, n50 this language appears to have been adapted from one of "Cato's Letters" that had been republished in the Gazette only a few months earlier. n51

A more elaborate declaration came in 1774, on the eve of the War for Independence. The Continental Congress, hoping to make allies of the settlers in Quebec, approved a declaration explaining to the northern neighbors the goals of the American endeavor:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, in its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated,  [*464]  into more honourable and just modes of conducting affairs. n52

Three things should be noted about the Quebec Address. First, its view of the purposes of freedom of the press was not limited to scrutiny of government, but also included broader intellectual and cultural objectives. Second, the declaration said nothing about freedom of speech. Although it reflects values we associate today with freedom of speech, or freedom of expression generally, it viewed the press as the means by which these values were to be vindicated. Third, the declaration must be read as an expression of American aspirations rather than accomplishments. The press freedom that the Continental Congress so ardently commended to the inhabitants of Quebec was poorly protected by law in America. The colonial press had no legal protection in 1774 other than the common law prohibition against prior restraints -- hardly a sufficient safeguard for the ambitious role outlined for the press in the Quebec Address.

B. The State Constitutions

The Massachusetts resolution and Quebec Address were not law, of course. The first legally effective press clauses appeared in the eleven state constitutions adopted during the War for Independence. n53 Of those, nine included provisions on freedom of the press, all phrased in general terms. n54

There were essentially four versions of these early press clauses. The first was the provision drafted by George Mason in 1776 for the Virginia Declaration of Rights. It read: "That the freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotick Governments." n55 This was copied almost verbatim in the North Carolina Declaration of Rights, later in 1776. n56

The second model was that of Maryland, which said simply:  [*465]  "That the liberty of the press ought to be inviolably preserved." n57 This was adopted verbatim in the Delaware Declaration of Rights, n58 and with minor deviations in the constitutions of Georgia n59 and South Carolina. n60

The Massachusetts Constitutional Convention of 1780 produced its own version of the press clause. It read: "The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this Commonwealth." n61 New Hampshire copied this model in its Bill of Rights of 1783. n62

The only state whose press clause did not follow one of these models was Pennsylvania; n63 it had the only original state constitution that protected freedom of speech as well as press. The Pennsylvania provision read: "That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained." n64

This is the provision invariably referred to as "the press clause" of the Pennsylvania Constitution, and as we shall see, this language eventually played an important role in the evolution of the first amendment. n65 But the Pennsylvania Constitution of 1776 contained a second provision relating to the press. This second press clause has been little noticed because it was contained not in the Declaration of Rights, where the other press clause was located, but in the main body of the constitution, called the "Plan or Frame of Government for Commonwealth or State of Pennsylvania." This second press clause read as follows: "The printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government." n66

 [*466]  It is impossible to know exactly what this provision meant. It may have been an exhortation to printers to open their columns to opposing viewpoints on government. We usually think of the colonial newspapers as being intensely partisan, and most of them were. But many of them also served as forums for public debate. The South Carolina Gazette, which Benjamin Franklin helped found, was a forum for religious and political controversy throughout the pre-revolutionary period. n67 As late as 1775, James Rivington, a leading Tory publisher, affirmed that his New York Gazetteer was open to all parties and that he considered his press "in the light of a public office, to which every man has a right to have recourse." n68 Merrill Jensen, an indefatigable reader of the newspapers of the period, wrote that "most newspaper publishers believed that it was a part of their public duty to print materials on all sides of a question, even when they were counter to a particular publisher's own views." n69

Moreover, impartiality and accessibility seem to have been universally acknowledged as ideals, however often they may have been ignored in practice. Even the most partisan papers invariably claimed impartiality, and when printers were attacked for publishing unpopular viewpoints, they often defended by appealing to the public's appreciation of the value of free and open discussion. Thus, even though the press did not come to view itself as primarily a neutral conduit of information until much later, the ideal of impartiality already was powerful enough to have inspired the second Pennsylvania press clause. n70

C. The Constitutional Convention

When the making of a federal constitution began a decade later, freedom of the press was already protected throughout most of the new republic by the state constitutions. The federal Constitutional  [*467]  Convention of 1787 overwhelmingly accepted the Federalist view that a bill of rights would be superfluous; Congress simply had no power to do the things that would be prohibited by a bill of rights. Indeed, some of the delegates felt that a bill of rights would be worse than superfluous. They feared that enumeration of some rights would imply that the federal government did have powers other than those spelled out in the Constitution. n71

An attempt by George Mason of Virginia and Elbridge Gerry of Massachusetts to create a committee to draft a bill of rights failed by a unanimous vote. n72 Charles Pinkney of South Carolina submitted a list of thirteen proposals, one of which stated: "The liberty of the Press shall be inviolably preserved." n73 The list was referred to a committee and never considered again. n74 Pinckney and Gerry then proposed the press clause alone. Roger Sherman opposed it with the familiar argument that "[i]t is unnecessary -- The power of Congress does not extend to the Press." n75 The proposal was defeated by a vote of seven states to four, with Massachusetts, Virginia, Maryland, and South Carolina voting aye. n76

The defeat of the press clause in the Constitutional Convention was only the beginning of the fight, however. The desirability of a bill of rights became a far larger issue in the ratification controversy.

D. The State Ratifying Conventions

Judging by the newspapers of the period, the new constitution was the most important public issue of 1787-88. n77 One of the points of greatest controversy was the absence of a bill of rights; and of all the omitted guarantees, few were decried more than the lack of a provision ensuring freedom of the press. n78 It is impossible to know whether this accurately reflects the general public sentiment, or only the special sensitivity of the press. n79 In any event,  [*468]  as Leonard Levy tells us, "[f]reedom of the press was everywhere a grand topic for declamation." n80

Indeed, both sides used the question of press freedom to illustrate their position on the larger issue. In the most influential statement of the Federalist position until the appearance of the Federalist Papers, James Wilson chose the press issue as his first illustration:

For instance, the liberty of the press, which has been a copious subject of declamation and opposition: what controul can proceed from the federal government, to shackle or destroy that sacred palladium of national freedom? . . . [T]he proposed system possesses no influence whatever upon the press; and it would have been merely nugatory, to have introduced a formal declaration upon the subject; nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent. n81

"Centinel," a pseudonym for one or more of the leading Pennsylvania Anti-Federalists, n82 responded to Wilson immediately. He accused the Federalists of seeking to shackle the press "as the first step towards the accomplishment of their hateful domination." n83

The abolition of that grand palladium of freedom, the liberty of the press, in the proposed plan of government, and the conduct of its authors and patrons, is a striking exemplification of these observations. The reason assigned for the omission of a bill of rights, securing the liberty of the press, and other invaluable personal rights, is an insult on the understanding of the people. n84

Mr. Wilson asks, "What control can proceed from the federal government to shackle or destroy that sacred palladium of natural freedom, the liberty of the press?" What! Cannot Congress, when possessed of the immense authority proposed to be devolved, restrain the printers, and put them under  [*469]  regulation? n85

The supremacy clause, Centinel added, would assure that the state constitutions could not provide protection "for the liberty of the press and other invaluable personal rights." n86 To Centinel, as to Wilson, the omission of a press clause was inseparable from the underlying disagreement between the Federalists and Anti-Federalists.

The role of the press clause -- indeed of the entire bill of rights -- in the ratification controversy must be appraised with some skepticism, however. The motives of those clamoring for a bill of rights were complex. Most undoubtedly harbored genuine concern for the protection of individual liberty. But for many that concern was peripheral; their real quarrel was with the underlying premise of the new republic -- the need for a stronger central government. And some probably saw that surrender of the states' autonomy would eventually jeopardize the institution of slavery. n87 For all of them, the inclusion of a bill of rights was not a discrete issue, but was inextricably intertwined with the larger issues of national power and states' rights.

Some of the clamor for a press guarantee and other bill of rights provisions undoubtedly was disingenuous. Levy, for one, suspects that opponents of ratification found it easier to generate support by alarming the populace than by addressing the merits of the proposed new constitution. n88 He notes that the Anti-Federalists' ardor for a bill of rights cooled remarkably once Madison introduced the proposed amendments and began pushing them through the First Congress. n89 Hamilton believed the Anti-Federalists were using the issue "to frighten the people with ideal bugbears, in order to mould them to their own purposes." n90 Washington's initial failure to recognize the power of the bill of rights movement has been attributed to his belief that the demand was a smokescreen to conceal the selfish motives of the opposition leaders. n91 And Madison, in one of the Federalist papers, pointedly noted that those now clamoring for a bill of rights had never bemoaned the lack of one in the Articles of Confederation. n92

 [*470]  It would be a serious misreading of the Anti-Federalists' position, however, to view their demand for a bill of rights as mere demagoguery. It is true that protection of civil liberties was not their exclusive -- or perhaps even primary -- concern. It is also true that their dissatisfaction would not have been cured even if a bill of rights had been included in the original Constitution. But it does not follow that the demand for a bill of rights was contrived. The demand must be viewed in political perspective. The Anti-Federalists were not (at least yet) secessionists. By 1787 they had to think about living under the Constitution if they should fail to defeat it. A bill of rights could no longer be merely a stalking horse, if it ever had been; it now became a means of protecting the Anti-Federalists' interests in the new federal scheme.

The overriding fear was the centralization of power in the national government. n93 The Anti-Federalists never accepted the Federalists' assurances of the limited nature of the new government, nor did they share the Federalists' willingness to leave important questions to the wisdom of the elected leaders of the new government. The Anti-Federalists believed a constitution should be written not as a guide for wise and just leaders, but as a constraint on "the natural and virtually irresistible tendency of men who held political power . . . to seek to increase it and to abuse it." n94 They may have also been concerned about the taxing power, the necessary and proper clause, the supremacy clause, and the power to maintain a standing army. Their concern about these powers, however, cannot be viewed as separate from the demand for a bill of rights. On the contrary, the grant of those powers made a bill of rights all the more necessary. Protection of civil liberties was not a problem distinct from the structural issues of government because the predominant threat to civil liberties in their view was the central government. It was not duplicitous, therefore, to argue simultaneously for defeat of the original Constitution and inclusion of a bill of rights. n95

Moreover, the Anti-Federalists' desire to defeat the Constitution does not disprove the genuineness of the public's concern about the lack of protection for individual liberties. The lack of a  [*471]  bill of rights was effective as a stick with which to beat the Constitution only because some significant portion of the public did not accept the Federalists' assurances. n96 The Anti-Federalists did not fabricate the demand for a bill of rights; they merely attempted to capitalize on it.

The America of 1787 was not neatly divided into Federalist and Anti-Federalist camps. The balance of power in the ratification struggle lay with those (in the states of New York and Virginia, primarily) who not only accepted the Federalists' view of the need for a stronger central government, but also shared some of the Anti-Federalists' concern about the power of that government.

Despite the intensity of the controversy over omission of a bill of rights, and despite the prominence of freedom of the press in that controversy, the ratifying conventions were hardly unanimous in demanding an amendment protecting the press. Indeed, of the twelve states that held ratifying conventions during 1787-88, only Virginia, New York, and North Carolina actually proposed federal press clauses. n97

A mere head count of states is misleading, however. The ratifications in which a bill of rights was not in controversy all came early in the process, in December of 1787 and January of 1788. Through that period only five states had ratified; and after February 1788, when the doubtful states acted, there were demands for a bill of rights in every ratifying convention. The demands intensified as ratification proceeded. Moreover, the most insistent demands for a bill of rights came from states whose assent was essential to the new government. Virginia was the largest and most important state at the time, followed by Pennsylvania, North Carolina, Massachusetts, and New York; n98 without their ratification, there would have been no union. Thus, even though only  [*472]  half of the ratifying conventions demanded amendments, those demands played an essential role in the evolution of the Bill of Rights.

The first such demand came in the Pennsylvania Ratifying Convention in December 1787. That convention considered a proposed bill of rights that contained a speech-and-press clause similar to that of the Pennsylvania Constitution. n99 Although the proposed amendments were defeated by a two-to-one margin, n100 they had great influence on the ratifying conventions in other states. n101

In the Maryland Ratifying Convention in April of 1788, thirteen amendments were proposed, including one stating "[t]hat the freedom of the press be inviolably preserved." n102 The language, an adaptation of the press clause of the Maryland Constitution, n103 was not remarkable. The drafting committee, however, added an intriguing, if enigmatic, commentary: "In prosecutions in the federal courts for libels, the constitutional preservation of this great and fundamental right may prove invaluable." n104 Whatever the draftsmen meant by this, it is clear that they did not share the view that a guarantee of freedom of the press would not affect seditious libel prosecutions. n105

 [*473]  Virginia's ratifying convention was the first to adopt a proposed press clause, in June of 1788. n106 Its press clause read: "That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty and ought not to be violated." n107

This proposal is remarkable for three reasons. First, it is almost identical to the language that Madison used when he introduced the Bill of Rights in Congress. n108 Second, it is not Madison's language, or even George Mason's. It is essentially Pennsylvania's language from the 1776 Pennsylvania Constitution. It includes the Virginia Constitution's "bulwark of liberty" rhetoric, but the substance is purely Pennsylvania's. This choice was crucial, because of all the original states, only Pennsylvania protected freedom of speech. n109 Had the Virginia Ratifying Convention used its own state constitution as the model, rather than that of Pennsylvania, Madison's proposed bill of rights might not have included freedom of speech. n110 Third, the Virginians ignored a Pennsylvania modification designed to adapt the state press clause to the federal context. The press clause unsuccessfully proposed at the Pennsylvania ratifying convention used the phrase "shall not be restrained by any law of the United States." n111 The Virginia convention chose a more universal prohibition similar to that of the Pennsylvania Constitution: "ought not to be violated." n112 Why Virginia chose the Pennsylvania press clause is a mystery, particularly since most of the rest of its proposals came from the Virginia Declaration of Rights. n113

 [*474]  For provisions relating to freedom of expression, however, the Virginia Convention relied primarily on the Pennsylvania Constitution. The Virginia Constitution contained no language relating to rights of assembly and petition, instructing representatives, and conscientious objection to military service; n114 for those rights, the Virginia convention borrowed from the Pennsylvania Constitution. n115 Pennsylvania's perceived superiority in these respects, together with its protection of speech as well as press, may have persuaded the Virginians to adopt Pennsylvania's press clause as well.

The press clause proposed by North Carolina was copied from the Virginia Ratifying Convention, as were all of the other North Carolina bill of rights proposals. n116 The Anti-Federalist majority in North Carolina was so inflexible in its demand for a bill of rights that it refused to ratify the Constitution until the amendments were adopted. n117

New York, which had no bill of rights in its state constitution, recommended a simple press clause based on the Maryland model: "That Freedom of the Press ought not to be violated or restrained." n118 Unlike that of any other state, however, the New York recommendation grouped freedom of the press in the same paragraph with the rights to assemble, to instruct representatives, and to petition for redress of grievances. n119 It thus became the first text to combine those expression-related rights (except speech, which was not mentioned) that eventually appeared in the first amendment.

The most notable fact about the ratifying conventions is that they generated few new ideas. Despite the clamor for bills of rights in general and freedom of the press in particular, the recommendations of the ratifying conventions merely repeated language from the state constitutions. Significantly, most of them saw no need to revise the language for application to the federal government;  [*475]  there was no mention of Congress or the federal government except in the recommendations of the Pennsylvania minority, n120 and that recommendation was not picked up by any of the other ratifying conventions. If the ratifying conventions viewed freedom of the press in the federal context differently from the way it was viewed in the states, their language did not reflect it.

E. The First Congress: Writing the First Amendment

As we have seen, the press clause already had a substantial legislative history by the time the First Congress met in New York in the spring of 1789. Nine of the states represented in the First Congress had press clauses in their own constitutions, n121 and the ratifying conventions had produced a few additional, albeit imitative, models. n122

To understand how the first amendment was written, we must strip away some of the mystique that has accumulated over two centuries. Although we obscure the fact by speaking of "Framers" or "Founding Fathers," it is important to remember that the Bill of Rights was written in essentially the same way as any other enactment of Congress -- by politicians, through the deliberately inefficient legislative process. The "Framers" sometimes used dilatory tactics and parliamentary chicanery. The summer in New York was unusually hot, a circumstance blamed for several displays of temper. n123 The Bill of Rights was but one of many matters requiring the attention of Congress, n124 and in the minds of many members, it was far from the most important. Though not necessarily reflecting the priorities of the First Congress, a 1792 letter from the Secretary of State to the state governors, announcing the ratification of the Bill of Rights, provides a nice sense of the perspective of the time:

I have the honor to send you herein enclosed, two copies duly authenticated, of an Act concerning certain fisheries of the United States, and for the regulation and government of the fishermen employed therein; also of an Act to establish the post  [*476]  office and post roads within the United States; also the ratifications by three fourths of the Legislatures of the Several States, of certain articles in addition and amendment of the Constitution of the United States, proposed by Congress to the said Legislatures, and of being with sentiments of the most perfect respect, your Excellency's &.

Th. Jefferson n125

The Bill of Rights was the literary product of three committees and several floor amendments in both houses. The language of the first amendment went through five versions and the final language was a compromise. n126

Madison, whose persistence eventually induced the House to take up the Bill of Rights, was himself a recent convert. As recently as February of 1788, he had maintained that a bill of rights was unnecessary. n127 His conversion had been aided, no doubt, by the fact that James Monroe had opposed him for election to the First Congress, and the chief issue was Madison's failure to demand a bill of rights in the original Constitution. Madison won by 336 votes, but only after pledging support for the Bill of Rights. He also acquired a permanent reminder of the campaign. Riding home one night from a debate with Monroe, Madison suffered frostbite; his nose froze, leaving him with a slight disfigurement for the rest of his life. n128

But Madison's support of the Bill of Rights was not mere opportunism. As his correspondence with Jefferson shows, n129  [*477]  Madison had never doubted the importance of civil liberties; what he doubted was the efficacy of a federal bill of rights. That skepticism certainly was not irrational. He believed there was some truth in the argument that the limited grant of federal power made such guarantees unnecessary. He feared that essential rights might be declared too narrowly. Madison anticipated that the "jealousy of the subordinate Governments" would provide a check on the federal government. His experience in Virginia had taught him that constitutional declarations ultimately were only "parchment barriers" that would topple under the pressure of a popular current. n130 With some persuasion from Jefferson, n131 these reservations gradually were overcome by the hope that a bill of rights would help create a national sentiment to "counteract the impulses of interest and passion" of popular majorities and provide a rallying point against a usurping government. n132 By the time the First Congress convened, Madison was thoroughly committed to the idea of a bill of rights, though perhaps still skeptical that it would accomplish as much as some of its proponents expected.

1. Madison's Proposals in the House

Madison did not mention the subject of amendments until a month after the Congress had convened, and then he was put off for another month while the House considered the subject of import duties. n133 When he finally introduced his proposed amendments on June 8, the House was in no hurry to act. Madison moved that the House sit as a Committee-of-the-Whole to consider the amendments. The motion encountered significant opposition, so he withdrew it and instead proposed that the amendments be sent to a select committee. That too was opposed, so the Committee-of-the-Whole idea was resurrected and adopted. n134 Nothing happened for six more weeks, and then the House reversed itself once again and sent the amendments to a select committee of eleven members -- one from each of the states represented in the First Congress. n135

Madison's bill of rights included two amendments relating to freedom of the press. The second, which was aimed at the states,  [*478]  came to naught. n136 The first evolved into the present speech-and-press clause. It read: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." n137 The language was essentially that suggested by the Virginia Ratifying Convention of the previous year. n138

On July 21, this amendment -- along with all the others -- was sent to the select committee. n139 Although the committee did not greatly change the substance of Madison's proposals, it played an important role in the legislative history of the first amendment. It rewrote Madison's speech-and-press provision and combined it with his separate clause protecting the rights of assembly and petition. The committee's language was much closer to the present first amendment than to Madison's draft. It read as follows: "The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for the redress of grievances, shall not be infringed." n140

Unfortunately, we know almost nothing about the committee's thoughts. Its chairman was John Vining of Delaware, an anti-amendment Federalist. Except for Madison, the only committee member who was prominent in the Bill of Rights debates was Roger Sherman of Connecticut, who had opposed amendments during the Constitutional Convention and continued to do so in the First Congress. n141 Fisher Ames of Massachusetts, who proposed the select committee but was not a member of it, said its purpose was to shorten debate and make the amendments "more rational, and less ad populum, than Madison's." n142

The House began debating the Bill of Rights on August 14, and the next day took up what by then had become the speech, press, assembly, and petition amendment. n143 Theodore Sedgwick of Massachusetts moved to strike the assembly provision, on the ground that it was "derogatory to the dignity of the House to descend  [*479]  to such minutiae." n144 He thought it self-evident that if people were guaranteed the right to speak, they necessarily must be allowed to assemble for that purpose. n145 Several members vigorously defended the assembly provision, and Sedgwick's motion was defeated by what the reporter described as "a considerable majority." n146

Thomas Tucker of South Carolina then proposed to insert a provision guaranteeing the right of the people to instruct their representatives, n147 which produced the most extended and acrimonious debate in the House's entire first amendment discussion. n148 Gerry and others criticized the select committee for omitting Tucker's proposal and other suggestions that had been put forward by the state ratifying conventions. n149 Defending the committee, Vining said that some of the amendments proposed by the State conventions were superfluous or dangerous, and some were contradictory. "[T]his is a circumstance the gentleman [Gerry] cannot pretend ignorance of," he added. n150 Madison and his allies accused the other side of procrastination, and were in turn accused of unseemly haste. n151 Members grew impatient and began calling for the question. John Page of Virginia decried their impatience and asserted his intention to speak even if no one was listening. n152 Gerry feared that members of the House were losing interest in the Bill of Rights. n153 Tucker's proposal eventually was defeated by a vote of ten to forty-one. n154

After this intense debate on instructing representatives, the vote on the amendment itself was anticlimactic. The records merely state that the question was taken on the speech-press-assembly-petition clause as reported by the select committee and that it was "agreed to"; there is no record of the vote or of comments opposing the clause. n155 The House spent six more days debating  [*480]  other bill of rights provisions and, on August 24, adopted a resolution formally proposing the amendments that had been agreed upon. n156

2. The First Amendment in the Senate

Records of the First Senate are far sketchier than those of the House. Senate proceedings were closed to the public, and no detailed record of debates was kept. n157 The Senate Journal and the History of the Proceedings and Debates report only the actions taken, without further elucidation. The Journal shows that the House version of what is now the first amendment came before the Senate on September 3. An attempt to insert a right to instruct representatives was rejected by a vote of two to fourteen. n158

The next proposal was the most intriguing of the entire first amendment discussion. It was a motion to qualify freedom of the press by providing that it should be protected "in as ample a manner as hath at any time been secured by the common law." n159 The Journal tells us nothing more about this proposal, except that it was unsuccessful. We do not know who made the motion or why, or what was said in response.

If the qualifying language had been adopted, the United States might have been a very different place today. A press whose freedom was protected in as ample a manner as had been secured by the common law would have been one whose editors could be legitimately imprisoned for criticizing the government. n160  [*481]  The defeat of this amendment was probably the most significant event in the entire formulation of the first amendment; had it passed, Blackstone's crabbed view of press freedom would have been frozen into our Constitution.

After an unsuccessful attempt to delete the phrase guaranteeing the people the right to consult for their common good, n161 the Senate then postponed further consideration, perhaps because of dissatisfaction with the way the amendment was worded. The next day, September 4, a new version of the language appeared, for the first time limiting the prohibition to Congress. It read: "That Congress shall make no law, abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances." n162 Again, we know nothing about the change. It may have been merely editorial, reflecting a desire to state the amendment in active rather than passive voice. n163 Or it may have reflected a determination to make clear that the amendment was to limit only Congress, not the states.

In any event, the change made the construction parallel to that of the religion clause as adopted by the House, which also began with the words "Congress shall make no law." n164 At the end of the Senate debate, on September 9, the Senate combined the two amendments into one, covering the same subjects as the present first amendment. It also deleted the phrase "and consult  [*482]  for their common good." n165

When the Senate version of the Bill of Rights was sent back to the House it became apparent that the House would not accept all of the Senate's changes, so the House called for a conference committee. n166 Over the next three days, the House accepted most of the Senate's changes. One of the rejected changes involved the establishment clause of the first amendment, n167 but the House accepted the changes in the press clause. On September 25, the speaker and the vice-president signed a resolution asking President Washington to send the twelve proposed amendments to the governors of the states for ratification. n168

Contrary to occasional flights of Newspaper Week oratory, the position of the first amendment did not indicate that the Framers attached primacy to the freedoms of speech and press. The provision we know as the first amendment was third on the list submitted to the states. n169 It became first only because Amendments One and Two were not ratified. n170 if the order of amendments represented their importance to the Founders, then we know that nothing was as important to them as the election (Amendment One), and compensation (Amendment Two) of congressmen. n171 In fact, freedom of press or speech was never first on anyone's list. It was the last right mentioned in the Address to the Inhabitants of Quebec. n172 It was article twelve of the Pennsylvania Declaration of Rights, n173 the sixteenth of twenty amendments proposed by the Virginia Ratifying Convention, n174 and the  [*483]  second clause of the fourth proposition in Madison's proposed bill of rights. n175

3. Madison's "Other" Press Clause

As mentioned above, Madison introduced two amendments relating to freedom of the press. n176 Although the second proposal was defeated, its brief life has a bearing on our understanding of the notion of freedom of the press.

Madison's second press amendment provided that "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." n177 This was the fifth proposition in Madison's bill of rights. He never explained why he thought it necessary; his first press clause was phrased as a universal prohibition, not merely a limitation on federal power. The answer undoubtedly is that since the Bill of Rights was a response to the fear of federal power, he assumed its prohibitions would not apply to the states unless expressly extended to them. Nevertheless, its inclusion is curious; it was Madison's only proposed limitation on state power.

Madison's version of this second press clause did not mention freedom of speech, but the select committee, to which all of Madison's proposals had been referred, rewrote it to prohibit the states from infringing "the freedom of speech or of the press." n178 When this provision came before the House on August 17, Tucker of South Carolina moved to strike it on the ground that the Congress should "leave the State Governments to themselves, and not . . . interfere with them more than we already do." n179 Madison resisted vigorously, declaring this amendment the most important on the whole list. "If there is any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the State Governments." n180 The House voted with Madison; n181 thus, the Bill of Rights as approved by the House contained two press clauses, one aimed squarely at the states.

We know nothing about the history of this amendment in the Senate, except that it was rejected. n182 Despite his earlier insistence  [*484]  that the state freedom-of-press clause was the most important of the lot, there is no indication that Madison fought for it in the conference committee, although he did successfully insist on the House's more expansive version of religious freedom. Because the House itself was not unanimous on the necessity of a state speech-press clause, Madison may have felt that he lacked the support to urge it in conference. In any event, the conference committee acceded to the Senate on the question. As a result, our constitution speaks -- in terms -- only to abridgements by Congress.

4. Some Observations on Congress' Work

From the first amendment's journey through Congress, three conclusions may be drawn. First, freedom of the press only gradually came to be seen as part of a larger parcel of related rights. In most of the state constitutions, freedom of the press was treated as a separate, distinct right. n183 In the ratifying conventions, its relationship to freedom of speech was recognized, n184 and in Madison's initial version of the first amendment, speech and press were coupled. n185 The House select committee joined those with the rights of assembly, consultation, and petition, combining in one amendment all of the major rights relating to freedom of expression. The Senate apparently also saw a relationship to free exercise of religion and freedom from governmentally established religion. The amalgamation of the religion clauses with those previously joined by the House made the first amendment what it is today -- a cluster of distinct but related rights, complementary means by which thought, belief, and expression are protected from governmental interference.

Second, Congress unequivocally refused to protect freedom of the press from encroachment by the states. The House's unspecific prohibition -- "freedom of the press . . . shall not be infringed" -- was made specific by the Senate: "Congress shall make no law . . . ." Madison and his colleagues in the House obviously assumed that, even without the word "Congress," a specific prohibition against state infringement would be required. But the Senate specifically rejected the state free-press amendment, and  [*485]  the House acquiesced in that decision. The legislative intent to limit only the federal government could hardly be more clear.

Finally, so far as we can tell, Congress never debated the merits or meaning of freedom of the press. n186 The arguments concerned either peripheral matters or questions about the advisability of a bill of rights generally. No one asserted that freedom of the press was not an appropriate or necessary element of a bill of rights. No one expressed any fear that the guarantee might make the press irresponsible or too powerful. No one suggested that "freedom of the press" was too expansive, or that the prohibition was too absolute to be taken literally.

F. Ratification

There was no Bill of Rights, of course, until it was ratified by three-fourths of the state legislatures. n187 And logically, the controlling intent should be that of the ratifying legislatures. In the case of an ordinary act of Congress, the authoritative understanding is not necessarily that of the member who proposed the legislation, but that of the majority of Congress, which alone has power to make the proposal law. In the case of a constitutional amendment, Congress merely proposes; the state legislatures hold the ultimate power. But how are we to divine a legislative intent from the separate actions of varying majorities of two houses in many states, sometimes extending over a period of many years? n188 The shared understanding we seek when we speak of legislative intent is elusive enough in ordinary usage; when we attempt to pursue it in ratifying legislatures, legislative intent may prove to be mythical.

Perhaps for this reason, the Supreme Court has never pressed the analogy. Although we are told that what is said in Congress about a constitutional amendment is not necessarily authoritative,  [*486]  we are not condemned to seek consensus in the reports of the state legislatures. Rather, we are to read the language "in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then to construe it, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted." n189 This of course does not foreclose inquiry into the meaning attributed to the amendment by the ratifying legislatures; it merely makes clear that we are not limited to that inquiry.

In the case of the Bill of Rights, the Court's invitation to look beyond the state legislatures is fortunate indeed because there is no record whatever of the meanings ascribed to the amendment by the ratifying legislatures. There are no records of debates in the state legislatures in 1790 and 1791. n190 Although we know there was significant opposition to at least some of the amendments (the first and second were not ratified), n191 the newspapers of the period reported very little about the debates. Correspondence about the amendments, both official and private, dealt primarily with procedures, prospects for ratification, and the tallying of approvals, rather than the substance of the amendments. n192

III. INTERPRETING THE LEGISLATIVE HISTORY

The legislative history of the press clause is, of course, inconclusive, not only in the sense that history is always inconclusive, but also because the Framers simply did not articulate what they meant by "freedom of the press." n193 Until some further evidence  [*487]  of their views turns up (which seems unlikely, in view of the vast amount of attention historians already have devoted to the Framers and their writings), attempts to divine the "original understanding" of the press clause must begin with this sketchy history of its framing. Nevertheless, some conclusions may be drawn.

First, freedom of the press, whatever it meant, was a matter of widespread concern. Nine of the eleven original states that adopted revolutionary constitutions protected freedom of press. n194 It was included in the bill of rights proposed at the constitutional convention; after that proposal was rejected, it was the only right proposed independently. Of the seven bills of rights that were proposed in the ratifying conventions, five contained press clauses. n195 By the time the First Congress began preparing a bill of rights, there was little doubt that one of the rights would be freedom of the press. Every version of the Bill of Rights considered by the First Congress contained a press clause; there was never any suggestion that it should be deleted. n196 Freedom of the press occupied a secure place in the framers' catalogue of essential rights.

Second, the press clause had its own origins, separate and distinct from the other first amendment rights. Freedom of the press was neither equated with nor viewed as a derivative of freedom of speech. Most of the state constitutions protected freedom of the press, but only one protected speech. As Levy showed, n197 freedom of speech, unlike freedom of the press, had little history as an independent concept when the first amendment was framed. "It developed as an offshoot of freedom of the press, on the one hand, and on the other, freedom of religion -- the freedom to speak openly on religious matters." n198 The hypothesis that the press clause was merely "complementary to and a natural extension of Speech Clause liberty," n199 advanced by Chief Justice Burger, is not supported by the historical evidence. Epistemologically, at least, the press clause was primary and the speech clause secondary.

 [*488]  "Freedom of expression," the notion of an interrelated complex of protections for thought, belief, and expression, is a modern concept. To impose it retrospectively on the framers is anachronistic. Although they gradually recognized a relationship between the freedoms of press, speech, petition, assembly, and religion, the process was inductive, rather than deductive. The Framers began not with a general theory of intellectual freedom, but with specific solutions to concrete grievances. The first amendment must be viewed (historically, at least) as the sum of its parts, not as a divisible integer.

Third, there is no evidence that the framers intended to protect freedom of the press qualifiedly. Whatever the concept meant to them, they sought to protect it fully. Not one of the state press clauses included the Blackstonian limitation, "being responsible for the abuse thereof," which appeared in a number of later state constitutions. n200 None of the proposals of the ratifying conventions contained any such limitation, nor did any of the versions in the First Congress. The only attempt to impose any limitation -- the proposal in the Senate to protect the press only "in as ample a manner as hath at any time been secured by the common law" n201 -- was defeated. In the debates of the Constitutional Convention and the First Congress, no one expressed any fear of the power of the press or any apprehension of abuse of its power. No one suggested that it was necessary to balance the freedom of the press against other interests. The Framers either did not appreciate, or appreciated but did not fear, the consequences of a free press. n202

Fourth (and most important), freedom of the press was viewed not merely as a desirable civil liberty, but as a matter integral to the structure of the new government. The press clause was the product of revolutionary ferment. There were no guarantees of press freedom in colonial charters and little agitation to add them. The demand for legal protection of the press was contemporaneous with the demand for independence and self-government. The rhetoric often came from the pens of Englishmen, such as John Wilkes, "Cato," and "Father of Candor," n203 but the realities  [*489]  that made the rhetoric relevant were the confrontations of American printers like John Peter Zenger and Eleazer Oswald with royal governors and other local representatives of the crown. n204

The first press clauses were written in response to a resolution of the Second Continental Congress, calling upon the states to repudiate the authority of the crown and establish their own governments. n205 These press clauses were produced not merely as salutary additions to an existing order, but as part of the urgent process of establishing "such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general." n206

We must remember that "[i]n the beginning [the Revolution] simply consisted of a number of state revolts loosely directed by the Continental Congress." n207 The state constitutions were revolutionary manifestos, and the press clause that evolved from them must be read in that light. Consider, for example, the Pennsylvania Declaration of Rights. Its preamble stated that "just, permanent, and proper forms of government [are] derived from and founded on the authority of the people only." n208 Throughout that declaration (and those of the other states), "the people" was used in juxtaposition with "government." n209

Thus, when the Pennsylvanians declared "That the people have a right to freedom of speech, and of writing and publishing their sentiments," they meant the people vis-a-vis the government. They guaranteed freedom of speech not for its own sake, but for its value in maintaining the desired relation between the people and their government. The second press clause of the Pennsylvania Constitution n210 made this unmistakable: the right to examine  [*490]  government was expressly guaranteed, either to the printers or perhaps to anyone who wished to avail himself of the printing presses for that purpose. n211

Throughout the formative period, the focus of discussion was on the role of the press in relation to the government. The Quebec Address shows some awareness that the press also had a role in advancing "truth, science, morality, and arts in general," n212 but the primary thrust of that document, and the exclusive thrust of  [*491]  all other official declarations, was that freedom of the press was a necessary concomitant of self-government. Neither the Federalists nor the Anti-Federalists doubted its importance in that role. The only real issue was whether the protection of that role required a specific limitation on the government's power over the press. The demand for such a limitation was based squarely on a recognition of the press' adversary relationship to government. As Centinel wrote at the height of the ratification controversy, "[m]en of aspiring and tyrannical disposition . . . have ever been inimical to the press, and have considered the shackling of it as the first step towards the accomplishment of their hateful domination, and the entire suppression of all liberty of public discussion, as necessary to its support." n213 In other words, a press clause was necessary, not to induce the press to provide a check on governmental power, but because it was universally assumed that the press would indeed provide such a check and that government therefore would seek to suppress it.

Nothing makes the structural role of press freedom clearer than the "bulwark of liberty" metaphor with which the ideal was expressed. The phrase, as well as many of the ideas that it represented, came from Cato's Letters. n214 Cato was a pseudonym for the English journalists John Trenchard and William Gordon. n215 Their essays have been described as "the most popular, quotable, esteemed source of political ideas in the colonial period." n216 Essay No. 15, entitled, "Of Freedom of Speech: That the same is inseparable from Publick Liberty," first employed the bulwark metaphor: "Freedom of Speech is the great Bulwark of Liberty . . . ." n217 Liberty, in eighteenth century America, meant political liberty; it was not a guarantee of personal autonomy or self-fulfillment. n218 Cato touted freedom of speech, not for its own sake, but for its value in combating governmental oppression and tyranny.

This sacred Privilege is so essential to free Government that the Security of Property; and the Freedom of Speech, always go  [*492]  together; and in those wretched Countries where a Man cannot call his Tongue his own, he can scarce call any Thing else his own. Whoever would overthrow the Liberty of the Nation, must begin by subduing the Freedom of Speech; a Thing terrible to publick Traytors. n219

That Cato described speech, not press, as the bulwark of liberty apparently was not important to those who borrowed the metaphor. The early press clauses drew heavily on both the phrase and the idea. The 1768 Massachusetts resolution, passed a few months after Letter No. 15 had been republished in the Boston Gazette, borrowed both: n220 "The Liberty of the Press is a great Bulwark of the Liberty of the People: It is, therefore, the incumbent Duty of those who are constituted the Guardians of the People's Rights to defend and maintain it." n221

The idea, though not the phrase, appears in the Quebec Address which assured the Canadians that through freedom of the press, "oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs," n222 and in the Massachusetts and New Hampshire bills of rights, which asserted that "[t]he Liberty of the press is essential to the security of freedom in a state." n223

The influential Virginia Declaration of Rights was pure Cato: "That the freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotick Governments." n224 The Virginians apparently liked the bulwark metaphor so much that they retained it in the press clause they proposed at their state's ratifying convention, even though the substance of that clause came from the Pennsylvania Declaration of Rights, which had not used the metaphor. n225 And, of course, when Madison proposed the Bill of Rights to the First Congress, freedom of the press was included "as one of the great bulwarks of liberty." n226

The revolutionary context from which the press clause sprang, the concerns of those who demanded it, and the language  [*493]  in which its role was expressed, all suggest that Justice Stewart was right: the Framers viewed the press clause as a structural provision of the Constitution. n227 "The primary purpose of the constitutional guarantee of a free press was . . . to create a fourth institution outside the Government as an additional check on the three official branches." n228

The legislative history of the press clause also supports Professor Blasi's assertion that "one of the most important values attributed to a free press by eighteenth-century political thinkers was that of checking the inherent tendency of government officials to abuse the power entrusted to them." n229 Stewart's structural theory accurately describes the role envisioned for the press in the new governmental scheme, and Blasi's checking-function theory explains the means by which the press was expected to exercise that role.

The Stewart-Blasi view of the press clause seems so thoroughly supported by the legislative history that one may wonder why it has not been universally accepted. The answer lies, I think, in the puzzle of seditious libel n230 and in the hegemony of Leonard Levy's interpretation of first amendment history. n231 If the Framers expected the press to operate as an effective check on government, how could they have tolerated the law of seditious libel, which made criticism of government a crime? And if they really understood the value of a free press, how could they have behaved so repressively toward it when they held power?

There is no denying that the Framers tolerated seditious libel. As Jefferson said in 1804, even the Republicans had no intention of abolishing state libel prosecutions. n232 Furthermore, the First Congress rejected Madison's attempt to protect press freedom against state action, n233 and the same generation that wrote the first amendment also wrote the Alien and Sedition Acts of 1798. n234

Nor is there any doubt that the Framers were capable of behaving  [*494]  repressively. During the revolutionary period, they harassed and intimidated printers suspected of Tory sympathies, n235 and thereafter one faction of them used the Sedition Act in a blatant attempt to crush opposition through seditious libel prosecutions. n236

To a generation predisposed to view the Framers as politicians and to judge them by what they did rather than what they said, these facts have made it easy to accept Levy's view that freedom of the press meant nothing more to the Framers than freedom from prior restraint. An examination of Levy's interpretation is therefore necessary.

IV. THE LEVY INTERPRETATION

Until 1960, the common assumption was that freedom of the press was one of the key reforms for which the American Revolution had been fought. n237 Professor Chafee in 1941 expressed the generally accepted view: "The First Amendment was written by men . . . who intended to wipe out the common law of sedition, and make further prosecutions for criticism of government, without any incitement to law-breaking, forever impossible in the United States of America." n238

This view was shattered in 1960 with the publication of Levy's book, Legacy of Suppression. Levy concluded that the Framers had no intention of instituting any broad reform regarding freedom of expression and, in fact, intended to leave intact the law of seditious libel. n239 The book was widely reviewed n240 and,  [*495]  together with Levy's later writings on the subject, n241 has dominated discussion of first amendment history for the past twenty years. n242

Levy interprets the phrase "freedom of the press" as a mere prohibition against restraints in advance of publication. n243 His conclusion is based on the assertions that in 1789 this was the common law meaning of the phrase, n244 that the few contemporaries who attempted to explain what they meant mentioned nothing more than freedom from prior restraint, and that none of the Framers articulated a more expansive meaning. The prevalent restriction on the press at the time was post-publication punishment for seditious libel, and none of the Framers condemned that as inconsistent with freedom of the press; therefore a general guarantee  [*496]  of press freedom such as Madison proposed would have prohibited only prior restraints.

But in Levy's view, the first amendment was not a general guarantee of press freedom. Rather, it was to be read with emphasis on the phrase, "Congress shall make no law." The Framers intended both more and less than the common law meaning of freedom of the press. With respect to Congress, they intended to go beyond the common law meaning. The press clause "was intended to prohibit any Congressional regulation of the press, whether by means of a licensing act, a tax act, or a sedition act. The Framers meant Congress to be totally without power to enact legislation respecting the press." n245 The states and the federal courts, however, were not to be limited at all; n246 the Framers' primary objective was to preserve states' power, not to protect freedom of expression. n247 This troubles Levy very little, because the Framers of the first amendment "formulated its language in words of such breath, however ambiguous, that we have been able to breathe a liberality of meaning into it, in keeping with the ideals of our expanding democracy." n248 Although he has devoted much of his career to studying the Framers' understandings, Levy ultimately concludes that "[t]he principles and not their framers' understanding and application of them are meant to endure. . . . That they were Blackstonians does not mean that we cannot be Brandeisians." n249

However one may feel about Brandeisism, it is difficult to dismiss the Framers' views entirely. With respect to interpretations that have already been made, we may find solace in mootness: the Supreme Court is not going to exempt the states and federal courts from the first amendment now, whatever we might discover about the Framers' intentions. But with respect to decisions yet to be made -- such as the meaning of "freedom of the press" -- the original intention is at least not irrelevant. If Levy's interpretation is correct, then history provides no support whatsoever for the rights now being asserted in the name of freedom of the press; if the press clause was not intended even to protect press criticisms of government, we can assume a fortiori that it was not intended to protect such exotics as confidentiality of sources or editorial autonomy. On the other hand, if the press clause was viewed as providing  [*497]  an essential check on government, then the claim to these additional rights may be far more plausible.

Before venturing to examine Levy's interpretation in light of the legislative history, I must acknowledge that I share his view that "much of history lies in the interstices of the evidence and cannot always be mustered and measured." n250 Ascertaining the intent underlying recent legislation is difficult enough, even with the advantages of contemporary perspective and records vastly superior to those kept 200 years ago.

Moreover, in the case of the Bill of Rights, there is a problem more basic than the passage of time and the absence of records. In a sense, the legislative intent underlying the Bill of Rights was that there be none. In 1787 there was an overwhelming consensus among the Framers that the Bill of Rights was superfluous. Undoubtedly many who voted for it two years later still considered it unnecessary legally, however desirable it might be politically. To borrow Jonathan Swift's metaphor, the Bill of Rights was "a tub to the whale," a diversion thrown to the angry monster to keep him from destroying the ship of state. n251 In such a case, the relevant intention is less that of the ship's crew than that of the whale: What does the monster demand? How much must be given up to pacify him? The first amendment was a concession; interpretation of it must take into account not only the personal views of the members of the First Congress, but also the demands to which the Framers were conceding.

The scope of those demands cannot confidently be determined from the legislative history of the press clause. The Bill of Rights was pushed through the First Congress by reluctant Federalists whose views undoubtedly were less expansive than those of the dissidents who were demanding a press clause; the reluctant  [*498]  assenter rarely accords to an issue the same importance it holds for the enthusiast to whom he accedes. Even the views of Madison, the late convert, probably do not reflect the full zeal of the earliest and most insistent proponents of a bill of rights. The point is not that the first amendment means what the zealots wanted it to mean, but only that it must have been intended to mean at least enough to placate them. Apparently it succeeded. As Levy observes, when the Bill of Rights was submitted to the states, "[N]ot even the Anti-Federalists offered the argument that the clause on speech and press was unsatisfactory because insufficiently protective." n252 With those reservations in mind, let us examine Levy's interpretation of the history of the press clause.

A. The Thesis

Levy's thesis has three tenets. The first is that freedom of the press, in the Framers' minds, meant nothing more than freedom from prior restraint. n253 Thus, if Madison's press clause n254 had been adopted, it would have had no effect except to constitutionalize the common law prohibition against prior restraints, and then only as against the federal government. Because the Framers instead chose the language, "Congress shall make no law . . . abridging the freedom . . . of the press," the press clause had two additional purposes (the second and third tenets of Levy's thesis). The second tenet is that as to Congress, the press clause was not merely a prohibition against prior restraints, but was an absolute bar "intended to prohibit any Congressional regulation of the  [*499]  press, whether by means of a licensing act, a tax act, or a sedition act. The framers meant Congress to be totally without power to enact legislation respecting the press." n255 This leads to Levy's third tenet: the real purpose of the press clause was to reserve to the states exclusive power to regulate the press. n256

B. The Press Clause and the Common Law

The legislative history of the press clause casts doubt on all three branches of Levy's thesis. His first proposition -- that the press clause merely constitutionalized the common law -- was not expressed in any of the drafts of the first amendment or in any of its antecedents. The only time such an expression was attempted -- in the Senate motion to protect press freedom "in as ample a manner as hath at any time been secured by the common law" -- it was rejected. n257

That does not prove Levy wrong, of course. The Senate may have rejected the reference to common law because it understood the press clause precisely as he suggests, and therefore considered the reference unnecessary. It is also possible, however, that the Senate rejected the limitation on the substantive ground that freedom of the press should not be limited to its common law meaning. Given two plausible explanations, with no extrinsic proof of either, there is no apparent reason to presume that the legislature's action was nonsubstantive. And, as we can see from the seventh amendment, when Congress intended the rules of the common law to control, it was capable of saying so. n258 Indeed, the Senate approved the reference to "rules of the common law" in the seventh amendment on the same day that it defeated the attempt to limit freedom of the press to its common law meaning. n259

Levy barely acknowledges the possibility that Senate defeat of the qualification was substantive. He found the rejected language worthy of only two sentences in Legacy of Suppression: "There is no way of knowing whether the motion was defeated on the ground that it was too narrow, too broad, or simply unnecessary. But its phraseology reflects a belief in the mind of its proposer that the common law adequately protected freedom of the press." n260

 [*500]  The second sentence is indisputable, but it only proves that belief in the adequacy of the common law was precisely what the Senate rejected. The first sentence is more troublesome. Since the Senate eventually approved an unqualified guarantee of press freedom, it can hardly have rejected the qualified version as "too broad." The rejection must have reflected a belief either that the language was too narrow (i.e., that the press clause should mean more than the common law) or that it was unnecessary. Levy rejects the former conclusion, apparently because he doubts that any broader meaning was known. But in fact there were more expansive notions in the air, n261 making the substantive explanation for the Senate's action more plausible: someone in the Senate feared that, unless qualified, "freedom of the press" would be given a more expansive meaning; he sought to prevent that, but he failed. This explanation is not ineluctable, but it is certainly no less plausible than the proposition that the Senate could see no difference between a flat prohibition against abridging freedom of the press and a promise to protect the press "in as ample a manner as hath at any time been secured by the common law." n262

C. The Press Clause and Congress

All the weight of the second and third branches of Levy's theory rests on the phrase "Congress shall make no law." The heart of his argument is that by focusing on the language forbidding abridgements of freedom of the press, we miss the point.

To understand its framers' intentions, the amendment should not be read with the focus on the meaning of "the freedom of the press." It should not, in other words, be read merely to mean that Congress could impose no prior restraints. It should be read, rather, with the stress on the opening clause, "Congress shall make no law . . . ." n263

One difficulty with this branch of Levy's thesis is that it seems inconsistent with the first branch. If freedom of the press was universally understood to mean nothing more than freedom from prior restraint, how could the press clause mean absolute freedom from all congressional restraint. Levy's only answer is that we should direct our attention away from the words "freedom of the press." But the first amendment does not forbid Congress from passing any law concerning the press; it only forbids any law abridging the freedom of the press. No matter how intently we try to focus on the opening phrase, the phrase "freedom of the press" is still there, too.

 [*501]  Moreover, nothing in the legislative history indicates that the Framers attached controlling significance to the opening words. Plainly, the phrase was not crucial to Madison; the amendment as he introduced it contained no reference to Congress. n264 Nor did the amendment, as passed by the House, contain a reference to Congress, even though the House had used the "Congress shall make no law" language in its religion amendment. n265 When the Senate changed the speech-and-press provision to include the reference to Congress, n266 neither Madison nor anyone else in the House indicated that they saw any significance in the change. And one must view the matter in historical perspective: at the time, the amendments were universally understood as limitations on federal power; even Madison agreed that the prohibition, "freedom of speech and of the press . . . shall not be infringed," despite its facial universality, applied only to the federal government. n267 And the power of the federal government was assumed to reside primarily in Congress. The legislature, rather than the executive or the courts, was the source of federal power that required limitation. n268 In 1789 it was considerably easier than it is today to read a passive "shall not be" to mean the same thing as its active cousin, "Congress shall not."

It is conceivable, therefore, that addition of the reference to Congress had no significance whatsoever. Even if the change was purposeful, its apparent purpose would have been merely to make clear that the amendment imposed no limitation on the states.  [*502]  The purpose ascribed by Levy's second proposition -- making the prohibition absolute -- would have to be inferred not from the reference to Congress, but from the words "shall make no law." Again, the legislative history contains no evidence that anyone understood those words to mean anything different from the "shall not be abridged" language of the state constitutions, which Levy insists was not absolute. n269

That Congress was the Framers' primary target cannot be doubted. But Levy's argument requires him to go further and insist that Congress was their sole target. If the first amendment was intended to limit the federal executive and judiciary also, it becomes impossible to accept Levy's invitation to minimize "freedom of the press" by focusing on the phrase "Congress shall make no law." Levy's conclusion is based in part on an implication that Madison did not intend to limit the judicial or executive branches of the federal government because "he did not employ the emphatic language of the Virginia ratifying convention's recommendation that freedom of the press should not be subject to abridgement 'by any authority of the United States,' . . . which would have covered the executive and the judiciary as well as Congress." n270

The implication is unjustifiable. The phrase "by any authority of the United States" did not appear in the clause as recommended by the Virginia ratifying convention. Those words appeared only in the "form of ratification" by which the convention officially assented to the original Constitution. The form contained only a one-sentence summary of reserved rights, from which Levy quotes. n271 A second document, much more detailed, contained the actual text of the proposed bill of rights. The press clause, contained in the sixteenth of those proposals, read "that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated." n272 The amendment, as Madison introduced it, omitted nothing from the recommendation of the Virginia ratifying convention.

Nor is there any other evidence that Madison intended to limit the proscription to Congress. The language as he introduced it was general: "the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." n273 In his explanation of the abuses to be prevented by a bill of rights, he spoke repeatedly of  [*503]  "the Government," rather than Congress. n274 Madison also believed freedom of the press should be protected from intervention by the states. n275 That Congress did not agree to limit the states implies nothing about either Madison's or Congress' intentions regarding the federal executive and judiciary.

The second basis for Levy's assertion that the press clause was to limit only Congress rests on the argument that the Framers intended that there be a federal common law of seditious libel; if so, they could not have intended the first amendment's absolute bar against Congress to apply also to the federal courts. n276 At first Levy was uncertain about this point. He described the evidence as contradictory and concluded that there was no proof that the Framers intended the existence of a federal common law of crimes. n277 Later, however, he asserted flatly that the first amendment "left the federal courts free to try cases of seditious libel." n278

It is true that in the early years of the Republic, a number of federal judges, including Supreme Court justices sitting on circuit, assumed they had jurisdiction of common law crimes. n279 But it does not follow that this assumption was consistent with the original understanding of the first amendment. The judges' assumptions are not authoritative as either history or law. Although some of them had been influential members of the Constitutional Convention, n280 their historical perceptions do not become authoritative merely because they later donned robes. So far as law is concerned, legislative intent is sometimes imperfectly understood, even by the legislators' judicial contemporaries. And even a willful misinterpretation cannot be corrected until the issue is properly presented to the appropriate appellate court. Since the Supreme Court repudiated the doctrine of a federal common law of seditious libel at its earliest opportunity, n281 early judicial assumptions to the contrary cannot be considered authoritative on the issue of the Framers' intent.

Levy also relies on a statement by James Wilson, one of the  [*504]  most able lawyers among the Framers. In a speech at the Pennsylvania ratifying convention in 1787, Wilson said:

[I]f this libel is to be tried, it must be tried where the offense was commited; for under this constitution, as declared in the second section of the third article, the trial must be held in the State . . . and it must be tried likewise by a jury of that State. n282

Levy interprets this as confirmation that the Framers contemplated libel prosecutions in the federal courts under either state or federal common law. n283 In context, however, it appears that Wilson is speaking hypothetically of the procedure that would be employed if Congress were to pass a sedition act -- a power Wilson insists Congress does not have. The point of the passage is expressed in a rhetorical question: "Now, I would ask, is the person prosecuted in a worse situation under the general government, even if it had the power to make laws on this subject, than he is at present under the State government?" n284

Wilson appears to be expressing no opinion as to the existence vel non of a federal common law of crimes. He is merely pointing out that even if Congress could authorize such a prosecution, the original constitution would safeguard the defendant's rights by requiring that he be tried by a jury of the state in which publication occurred. Ratification of the Constitution therefore could pose no threat to freedom of the press. Although Wilson clearly believed the states had the power to punish seditious libel, n285 his statement indicates nothing about the federal courts'  [*505]  power to do so.

If the Framers assumed the existence of a federal common law of seditious libel, it is difficult to understand why a number of them thought it necessary to pass the Sedition Act only nine years later. Levy argues that although the existence of a federal common law of seditious libel made the Sedition Act legally unnecessary, it was nevertheless politically advisable "to declare public policy in unmistakable terms" because that helped ensure effective enforcement of the law and stirred public opinion against the law's intended victims. n286 These might be sufficient reasons for enactment of a more innocuous statute, but it seems unlikely that the Federalists were so desperate or foolish as to gamble their political future on the highly controversial Sedition Act if they believed it legally unnecessary. The more obvious explanation for the Sedition Act is that without it, the Federalists assumed the central government had no power to punish seditious libel.

My point, however, is not that the first amendment was or was not intended to prevent federal common law prosecutions for seditious libel. I think Levy was probably right the first time: the evidence is contradictory, and we cannot know whether the Framers intended to limit the courts and the executive. Rather, the point is that history provides no confirmation of Levy's claim and therefore provides little support for his argument that the reference to Congress, rather than freedom of the press, is the key to understanding the press clause.

Ultimately, the reference to Congress becomes immaterial in Levy's analysis. Even if we read the amendment exactly as Levy suggests -- as an absolute prohibition aimed exclusively at Congress -- it still ascribes to the Framers no legally significant purpose. Levy concedes that his reading makes the press clause meaningless, except as a political gesture. He agrees with the Federalists that "the national government, even in the absence of the  [*506]  First Amendment, could not make speech or press a legitimate subject of restrictive legislation. The amendment itself was superfluous." n287

D. The Press Clause and The States

If the press clause had only the significance attributed to it by Levy's first two propositions, it would be a nullity. Standing alone, the first proposition -- that freedom of the press meant freedom from prior restraint -- would at least prevent backsliding: the courts and legislatures could not take away the freedom citizens had come to enjoy under the common law. But the second proposition takes away even this preservative effect; it holds that the press clause was addressed only to Congress and did not in any way limit the power of the courts (state or federal) or the state legislatures. n288 As to Congress, Levy concedes that the press clause was a sop offered merely "[t]o quiet public apprehension [by offering] an added security that Congress would be limited to the exercise of its delegated powers." n289

We may agree that even founding fathers are capable of cluttering a constitution with meaningless, but politically useful, provisions. As lawyers, however, we normally do not assume superfluity if another interpretation will render the language meaningful. Levy acknowledges this convention by his third tenet, ascribing to the speech and press clause the purpose of protecting the states from the federal government. "The primary purpose of the First Amendment was to reserve to the states an exclusive authority, as far as legislation was concerned, in the field of speech and press." n290 This is inferred from "the countless states' rights arguments advanced by the anti-Federalists during the ratification controversy" and from Republican arguments during  [*507]  the Sedition Act debates. n291

One may concede that the Framers believed the states retained power to control speech and press, including the power to punish seditious libel. One may also admit that this belief was shared by the first amendment's chief proponents, the Anti-Federalists. As Levy points out, this view was endorsed by Jefferson, Madison, Albert Gallatin, Edward Livingston, John Nicholas, and Nathaniel Macon, among others. n292 Moreover, Jefferson made it clear that this was the official Republican position. In a letter written in 1804, Jefferson assured Abigail Adams that the Republicans' rejection of the Sedition Act as unconstitutional would not leave the country at the mercy of the defamers. The states, he wrote, would have "exclusive" control over freedom of the press. n293

It scarcely follows, however, that this was accomplished by the first amendment, let alone that this was its primary purpose. None of the Anti-Federalists or Republican speakers upon whom Levy relies referred to the first amendment as the source of this reservation of power to the States. Rather, they inferred it from the limited nature of the federal government's power over the press. n294 And if they needed more, they could have pointed to the ninth and tenth amendments n295 and to the defeat of Madison's proposal to protect the press from the states. There is simply no evidence that the first amendment was viewed by anyone as the source of reserved state power over the press.

If the Framers had intended the first amendment to serve as a reservation of state power over the press, it is difficult to see how the language chosen could have been expected to achieve that goal. The amendment did not allude even obliquely to the subject of federal interference with state regulation of the press, nor did any of the earlier versions in the First Congress or any of the antecedents from the ratifying conventions. The argument requires the amendment to be read as if it said "Congress shall make no law abridging the power of the states to abridge the freedom of speech, or of the press" -- a construction which none of the Framers articulated.

 [*508]  There is yet another difficulty with the states' rights interpretation. Nine states had already adopted constitutions that guaranteed freedom of the press. n296 Those provisions cannot be explained as an attempt to preserve state power; whatever they meant, they could only be limitations on governmental power to regulate the press. If guarantees of press freedom operated as limitations of states' power when included in their constitutions but somehow preserved their power when included in the federal constitution, one would expect to find some discussion of the matter.

The idea of freedom of press obviously had meaning outside the federal context. It was thought desirable to protect the press not only from the federal government, but also from the states. This impulse antedated concern about federal power. Levy's argument attributes to the Framers a rather devious subtlety: in the guise of satisfying demands for protection of the press, they in fact preserved state power to control the press, and did so by modifying the freedom-of-the-press language of the state constitutions so slightly that those demanding protection of the press did not notice, while those demanding protection of state power to control the press understood fully. The ploy is too clever; if the Anti-Federalists' primary aim was to preserve state power, they would never have accepted the enemy's assurances that so subtle a change would convert a familiar limitation on state power into a reliable protection of that power.

We have already seen that the press clause was superfluous, in Levy's view, insofar as its purpose was to limit Congress. Without the states' rights purpose, the Levy interpretation ascribes to the press clause no legal effect at all. Such a vacuum may not be abhorrent to the historian, but it is to the lawyer. Thus, lawyers who are unpersuaded by Levy's states' rights argument sometimes try to save the press clause from meaninglessness by treating press as a subcategory of speech. The purpose of the press clause, under this view, was to make clear that written expression is not excepted from the general protection accorded speech. n297

This reading assumes that the primary objective was to protect freedom of speech and that the goal of protecting written speech was subsidiary. Neither assumption is supported by the legislative history. The textual antecedents of the first amendment reflect a greater concern with press than with speech. The earliest expressions, the Massachusetts Resolution and the Quebec Address, mention freedom of the press but not speech. n298 Nine of the state constitutions of the revolutionary period protected press and  [*509]  only two protected speech. n299 Freedom of speech gradually gained recognition and may have achieved coordinate status by 1789, but the First Congress certainly did not accord it primacy over press freedom. Although press is sometimes treated as a subcategory of speech today, n300 to the Framers it was primary, not subsidiary. n301

If one is not persuaded by either the subcategory of speech theory or Levy's states' rights explanation, the alternative is to consider once again the meaning of "freedom of the press." If the Framers attributed to that phrase some significance beyond the common law prohibition against prior restraints, then we need not look for hidden meanings in the phrase "Congress shall make no law." The press clause would then make sense on its own terms; it was included in the Bill of Rights because the Framers thought it added something useful to the new scheme of government.

The chief obstacles to such an interpretation are (a) the existence of seditious libel, and (b) the absence of any articulated meaning of freedom of the press. To those matters we now turn.

V. THE MEANING OF FREEDOM OF THE PRESS IN 1789

The legislative history does not support Levy's interpretation of the press clause, but he never claimed that it did. His theory rests instead on the proposition that freedom of the press could only have meant freedom from prior restraint, because in 1789 the concept of seditious libel -- criminal punishment for criticism of government -- was almost universally accepted and because no more expansive theory of press freedom was current. Once again, Levy's scholarship is the dominant source of information. We therefore may profitably begin by examining his historical evidence.

A. Seditious Libel in America, Pre-1798

Levy asserts that the validity of seditious libel had never been  [*510]  challenged in America prior to 1781, n302 but his own evidence shows that seditious libel, in fact, became ineffectual during the eighteenth century primarily because of popular opposition. n303 This suggests that the Blackstonian view was not universal, and that there was opposition to the notion that it was criminal to criticize government.

Levy correctly points out that seditious libel was part of the received law in colonial America and that no state had repudiated it by 1791. n304 But although the law of seditious libel remained in effect, in practice the doctrine was impotent by the time of the revolution. Criminal prosecutions for seditious libel were virtually unknown in the lifetimes of the Framers. n305 Professor Nelson suggests that "[c]ourt trials for seditious libel ended as a serious threat to printers in the American colonies with the decision in the Zenger case in 1735." n306 Nelson was able to find only one successful prosecution before Zenger and none after. n307 Indeed, few prosecutions were even attempted. Nelson found only nine attempts in the entire colonial period. n308

The primary reason for the demise of seditious libel was the resistance of juries, both grand and petit. In 1690, in the very first criminal libel prosecution in America, Pennsylvania's attempt to prosecute William Bradford was thwarted when the petit jury deadlocked, reportedly after a sympathetic juror upset the type-form  [*511]  that contained the most damaging evidence. n309 Zenger, of course, was acquitted by a petit jury that defied the judge's instructions. n310

In other cases, attempted criminal prosecutions for seditious libel were thwarted by the refusal of grand juries to indict. Grand juries blocked the prosecution of Hermon Husband, leader of the Regulators in North Carolina, n311 and twice refused to indict the publisher of the Massachusetts Spy in 1772. n312 They repeatedly ignored Chief Justice Hutchinson's exhortations to indict persons connected with the Boston Gazette during 1767-69, until Hutchinson finally gave up in despair. n313 In Pennsylvania, Chief Justice McKean experienced the same frustration when the grand jury refused to indict Eleazer Oswald for criticizing McKean. n314

Criminal prosecution in the courts was not the only method of punishing seditious libel in colonial America, however. As Levy points out, the judges were "angels of self-restraint" compared to the legislatures, which claimed power to punish as "breaches of parliamentary privilege" statements reflecting adversely on the legislature, its members, or on the government generally. n315

Parliamentary privilege was an extension of the freedom of speech guaranteed to Parliament by the English Bill of Rights of 1689. n316 In addition to freedom from arrest and freedom of speech for themselves, members of the colonial legislatures, like their English models, claimed the right to punish nonmembers who displayed contempt for the reputation or authority of the assembly. Suspected contemnors were summoned before the assembly and summarily tried. n317

Although parliamentary privilege was used in colonial America more frequently and more successfully than criminal prosecution, it too was eventually rendered ineffective by popular opposition. n318 For example, the Massachusetts House in 1754 attempted  [*512]  to punish printer Daniel Fowle for satirizing a House debate. Fowle fought back by publishing a tract condemning the proceedings against him as unjust and describing as tyrannical the House's role as accuser, judge, and jury. His case became a local cause celebre, and the House was forced by public pressure to drop the charges. n319 In the most famous case, the New York Assembly arrested Alexander McDougall for seditious libel and imprisoned him for two and one-half months. The New York newspapers came to McDougall's defense, and McDougall became the most important symbol of press freedom since John Wilkes in England in the previous decade. n320 McDougall spent about three months in jail, but he never submitted to the Assembly's demand that he apologize, and in the public mind, the victors were McDougall and the press, not the Assembly. n321

In Massachusetts, Levy tells us, popular sentiment was so strong that when Isaiah Thomas verbally attacked the governor and lieutenant governor in 1771, the Council itself did not dare to proceed against Thomas, but instead ordered the attorney general to seek an indictment. The grand jury refused to indict, and public outcry forced the abandonment of a subsequent attempt to proceed against Thomas by information. n322

Levy interprets this recalcitrance as mere political resistance to royal authority, rather than principled opposition to seditious libel. n323 But the public was just as hostile to the use of seditious libel by its own elected representatives in the Assembly. Even if the hostility were directed solely at the Tories, it would not follow that Americans must have approved of seditious libel in principle. The public rarely objects to a law in the abstract; the offensiveness of a law in principle is not likely to produce public outcry until a particular application of the law produces unpopular results. It may be that the Americans had no occasion to doubt the wisdom of seditious libel apart from its abuses by royal authority.

In any event, use of seditious libel to supress criticism in the colonies proves little about the meaning of the press clause. The prosecutions occurred before there were any state constitutional provisions protecting freedom of the press, so they do not necessarily suggest that seditious libel was believed to be consistent  [*513]  with freedom of the press. n324 They do indicate that someone approved of seditious libel, but they do not necessarily reflect the view of the public. The fact that legislatures and judges employed seditious libel hardly proves that the Framers intended to permit them to continue to do so; the very purpose of constitutional limitations is to restrain legislators and judges from acts they would otherwise consider proper. The popular resistance mentioned above makes it obvious that the views of the judges, and sometimes even the legislators, were at variance with those of many Americans. The offense of seditious libel "was one that seems to have been condemned on the statute books but not by the moral consciousness of the community. When the better men in the community openly break the law, it is a law which is destined to be replaced, for it is already dying." n325

Scholars who have examined the newspapers of the period confirm that the law was ineffective in preventing seditious libel. Historian Merrill Jensen, a knowledgeable student of early American newspapers, said that "[d]espite the law there was freedom of expression in fact. No governmental institution, political faction, or individual was free from attacks such as few newspapers today would dare to print." n326

Professor Teeter's examination of Philadelphia newspapers between 1775 and 1784 n327 provides numerous examples. The Freeman's Journal repeatedly attacked the Continental Congress for devaluing the currency in order to finance the war. n328 The Journal opposed the National Bank, accusing one of its congressional proponents of associating with traitors. n329

When Thomas McKean, Chief Justice of the Pennsylvania Supreme Court, sentenced a pirate to death in a case in which the Journal thought McKean was disqualified, the newspaper suggested he was guilty of murder. n330 Eleazer Oswald's Independent Gazeteer was even less temperate. It accused the vice president of Pennsylvania of "treason against the majesty of honesty" and of embezzling state money. n331 Later it called McKean "an exasperated  [*514]  man of impetuous passions" n332 and reported that McKean appeared in a parade dressed "all in scarlet (like the whore of Babylon, some said)." n333 Oswald nicknamed one of his competitors "Goosy Tom" n334 and another group of adversaries "baboons of ingratitude." n335 He even had the temerity to criticize George Washington. n336 None of these outrages produced libel prosecutions. n337 Although the law of libel may have established outer boundaries for press behavior (as it does today), it in fact did not prevent robust -- and even seditious -- comment on public issues. n338

Finally, we must remember that the Framers were inveterate seditious libelers themselves. Many of them were outspoken critics of the existing government under the Articles of Confederation. Under the Blackstonian view of freedom of the press, that criticism made them guilty of seditious libel. n339 Levy implies that they were oblivious to this anomaly, but Madison, at least, was not. If sedition acts had been enforced against the press during the revolutionary period, he asked rhetorically, "might not the United States have been languishing at this day, under the infirmities of a sickly confederation?" n340

 [*515]  It is difficult to believe that the Framers' attitudes toward criticism of government were unaffected by the revolutionary experience. Even if they were not prepared to articulate a new theory that would repudiate seditious libel explicitly, they may well have believed that the hopeful generality "freedom of the press" -- an idea that took root (whatever its meaning) during the revolutionary period -- would somehow accommodate criticism of government.

B. The Sedition Act of 1798

There remains the rather large fact of the Sedition Act of 1798. n341 If the Framers intended by the press clause to protect criticism of government, how could they have enacted, only nine years later, a federal statute whose avowed purpose was to prevent such criticism? There can be no doubt that the Sedition Act was inconsistent with the checking-function theory of the press clause. The Act made it a crime to "write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame." n342

Moreover, the Sedition Act was no idle threat. The Federalists brought fifteen indictments under the Act during the three years of its existence, and ten of those led to convictions. n343 The Act was used against four of the leading Republican newspapers of the time; three of the most prominent editors were convicted; and three of the newspapers were forced to cease publication, two permanently. n344 The Act came perilously close to eliminating the entire opposition press in the United States. n345

 [*516]  A press whose editors could be imprisoned for urging citizens to join in opposition to the policies of government could scarcely be expected to function as "a fourth institution outside the Government [to serve] as an additional check on the three official branches." n346 It is tempting to conclude that the Framers must have held some other view of the press clause, not inconsistent with the Sedition Act. n347 But in this instance, the attempt to impose consistency on history is unwise for at least two reasons. First, the premise that the Sedition Act must have been consistent with the views of the Framers is questionable. Second, reconciliation may prove impossible, because the Sedition Act may be inconsistent with any interpretation of the press clause.

1. The Sedition Act and "The Framers"

If the Sedition Act had been passed forty years after the first amendment was framed, we would indulge Congress the usual presumption of constitutionality, but we certainly would not view the Act as evidence of the legislative intent underlying the constitutional provision against which the Act was being measured. We do so in the case of the Sedition Act only because of the temporal proximity of the two events; because of that nearness, we sometimes assume the actors must have been more or less the same, or at least must have shared the same basic ideas. Neither assumption is true.

Both America and the Congress changed dramatically in the 1790s. The triumphant self-confidence that produced "the great experiment" was being eroded by xenophobia, sectionalism, and partisanship. The visions of anarchy generated by the French Revolution and the reality of war between the European powers must have seemed genuinely threatening to many in the politically immature and militarily weak new republic. The period has been described as "the most awkward decade in American history, bearing little relation to what went on immediately before or  [*517]  after." n348

The Fifth Congress reflected the changes that were occurring in the country during that decade. Of the ninety-five senators and representatives who served in the First Congress, only eighteen remained when the Sedition Act was enacted in July 1798, and of those only ten voted "aye." n349 It was thus not, in any literal sense, "the Framers" who passed the Sedition Act. Nor was it that subset of the Framers called "the Federalists." The Sedition Act was, of course, the project of the Federalist Party. The party's leader, President Adams, did much to incite anti-Republican sentiment in Congress, approved the Act's passage, and specifically authorized its enforcement against his critics. n350 The premier Federalist, Alexander Hamilton, urged Adams to enforce the Act even more vigorously and sought passage of even more drastic limitations on criticism of government officials. n351

The seditious libel portion of the Act was drafted by Robert G. Harper of South Carolina, acknowledged leader of the Federalist Party in the House. His primary helpers, Representatives Harrison Gray Otis of Massachusetts, John Allen of Connecticut, and James Lloyd of Maryland, were also leading Federalists. No significant member of the Federalist Party, in Congress or out of it, opposed the Act, except John Marshall, and even he did not doubt its constitutionality. n352 On the other hand, every Democratic-Republican  [*518]  except one n353 opposed it on the ground of unconstitutionality. And the Act was enforced exclusively by the Federalists against their Republican opponents. n354

The Federalists of 1798, however, were a very different group from the Federalists of 1789. "In 1788-89, Federalism was more a state of mind than an organized political party." n355 Indeed, the very idea of political parties was anathema to the original Federalists, who viewed parties as a source of weakness and division. n356 It was not until 1792 that the Federalist and Republican parties emerged, triggered by widening political and economic differences between Alexander Hamilton and the northern commercial interests on the one hand, and Jefferson, Madison, and the Southern and Western agrarian interests on the other. n357

The Federalists of 1789 were a loose coalition of friends of the Constitution, scattered among all the states, who corresponded with each other to obtain a ratification of the Constitution, but who were not organized on a national level. n358 In contrast, the Federalists of 1798 were a national political party based in the North, representing the mercantile, shipping, and financial interests of the cities and were led by men who believed that those who owned the country had a duty to preserve it from the threats of democracy, immigration, and licentiousness. n359

Nor were the Republicans of 1798 merely the remnants of the Anti-Federalists of 1789. The leaders of the two parties in 1798  [*519]  were those quintessential Federalists of 1789, Hamilton and Madison. Indeed, the rival groups were sometimes called "Hamiltonians" and "Madisonians" rather than "Federalists" and "Republicans." n360 Some of the leading Anti-Federalists, most notably Richard Henry Lee and Patrick Henry, became Federalists in the new alignment. n361

Thus, despite the passage of only nine years, the Federalists who passed the Sedition Act in 1798 were a very different group from those who wrote the Constitution and the first amendment. The men who pushed the Sedition Act through Congress -- Harper, Lloyd, Otis, and Allen n362 -- were not Framers at all. They were political partisans, n363 none of whom had been members of either the First Congress or the Convention of 1787.

If the players were different, so were the ideas upon which they acted. n364 The "optimistic faith in human possibilities that had illuminated the Declaration of Independence" was gone. n365 The excesses of the French Revolution and the devotion to self-interest they observed in their own countrymen convinced the Federalist Party members that the chief threat to America was democracy. The great experiment was going awry; the masses were beginning to take seriously such notions as equality, majority rule, and universal suffrage. And there was no shortage of leaders ("demagogues," in the Federalist lexicon) to encourage and exploit these popular ideas.

The remedy, in the Federalist view, was a little healthy fear of government. n366 The Republicans and their newspapers not only failed to help maintain this respect for government, but were actively undermining it by constant and often irresponsible attacks on the Federalist leaders of the government. n367 The Sedition  [*520]  Act was, in this view, an entirely understandable response to this perceived danger, but it reflected a quite different view of the dangers facing America than did the Bill of Rights.

This is not to say that fear of democracy was unknown in 1789, or that it was exclusive to the Federalists in 1798. Although the Federalists of 1787-89 did not admit it, their reluctance to accept a bill of rights may have reflected a sense that it would import too much liberty into the new order. Madison himself, in his speech introducing the Bill of Rights in the House, observed that oppression by popular majorities posed a greater danger than oppression by government. n368 But fear of democracy was no more than a reservation in the back of the Framers' minds; by 1798, it was a central force in Federalist Party policy.

The Sedition Act has a stench of political expediency about it that robs much of its force as evidence of its proponents' fundamental beliefs. The avowed purpose of the Act was to silence the Federalists' domestic critics, thereby presenting to the world a united front and refuting French claims that the American people did not support their government. n369 But the Federalists used the Act in an attempt to weaken the Republicans before the elections of 1800.

In the summer of 1799, Thomas Pickering, the Federalist Secretary of State, began an organized campaign to prosecute editors of all the leading Republican newspapers. Pickering personally prosecuted William Duane, editor of the influential Philadelphia Aurora. He instructed local federal district attorneys to do likewise in New York, Richmond, and Baltimore -- the homes of the Republican papers the Argus, the Examiner, and the American, respectively. These prosecutions were timed to produce indictments by September or October (with trials early in 1800) and thereby to silence the most influential opposition voices at the height of the contest between Adams and Jefferson. n370 There were also prosecutions of Republican politicians, but none against Federalist newspapers or officials. The plainest indication of the Act's blatantly partisan design is its omission of Vice President Jefferson from its protection. The President and members of both houses of Congress were protected, but the Vice President was not. "Had Jefferson's vilifiers been made amenable to the Sedition Act, most  [*521]  of the leaders of the Federalist Party, including Alexander Hamilton, would have been haled before the courts." n371

The point is not that the Sedition Act was a purely cynical political ploy; on the contrary, there is little doubt that the Federalists genuinely believed that survival of the nation was threatened by internal dissent. But when men have so far confused the public weal with their own political well-being, what they do to achieve the latter is often poor evidence of their views on the former.

The argument that the Sedition Act must have been consistent with the Framers' understanding of the first amendment because they (or men who shared their ideas) passed it is untenable. Neither of the alternative premises is sound. The Federalists who sought to prevent criticism of government by passing the Sedition Act were not the Framers, nor did they share the Framers' views. Because they were members of the same generation as the Framers, their views on the meaning of the press clause are entitled to somewhat greater weight than we should give to those of a contemporary Congress, but their views cannot be controlling. That the Fifth Congress might have passed an act inconsistent with the original understanding of the Constitution is hardly impossible. n372

2. Irreconciliation

Let us assume for a moment that the Federalists of 1798 must have known what the press clause originally meant and that their Sedition Act was consistent with that meaning. What could that meaning have been? The obvious answer is "no prior restraint." If the press clause merely constitutionalized that Blackstonian prohibition, the Sedition Act would not be inconsistent; it did not, after all, authorize injunctive relief. The subsequent punishments authorized by the Act n373 would be perfectly consistent with that view of the press clause.

 [*522]  But this interpretation is still inconsistent with everything we know about the Framers' intentions because the Sedition Act was a federal law. The one point upon which the Framers did make their intention clear was that Congress had no legitimate power to pass any law respecting the press.

This was the assurance Pinckney and Gerry received when they tried to insert a press clause in the original Constitution. n374 It was the answer James Wilson gave to the Pennsylvanians who demanded a press clause during the ratification controversy. n375 It was Madison's position in the federal convention, and he did not abandon that view even after his conversion to the view that a bill of rights should be added. n376 It was the Federalists' primary argument against the press clause in the First Congress. n377 The Anti-Federalists never accepted these assurances that the national government had no power to pass any law respecting the press, but they certainly did not disagree with the proposition. Their position was not that Congress had such power, but that inevitably Congress would usurp it. In that, they were right. They were wrong only in supposing that a press clause would prevent it.

The Framers were unanimous: the Constitution gave Congress no power to regulate the press. The Sedition Act therefore was utterly inconsistent with the original understanding of the Constitution, no matter what the press clause meant. It is doubly inconsistent with the Levy thesis. He argues not only that the original Constitution gave Congress no power over the press, but that by adding the first amendment, the Framers meant to give added assurance that Congress was to be "totally without power to enact legislation respecting the press." n378 Levy acknowledges, as he must, that the Sedition Act is inconsistent with his interpretation of the press clause. n379

Under any view of the matter, the Sedition Act was a breach of the Framers' understanding. It is therefore futile to look for the meaning of the press clause in that Act.

Neither the existence of a common law of seditious libel, nor the passage of the Sedition Act, precludes the possibility that the press clause was intended to protect criticism of government.  [*523]  There remains the question whether any such view of freedom of the press existed when the first amendment was written.

C. Broader Meanings

The clincher of Levy's thesis is the assertion that a libertarian theory of freedom of the press did not develop until after the first amendment had been drafted. Through the seventeenth and eighteenth centuries, he asserts, the Blackstonian understanding of freedom of the press was universal and unquestioned: n380 "[I]t was the only definition known in Anglo-American thought and law. No libertarian theorist had offered a broader definition, and there is no known evidence that any American prior to 1798 -- that late -- thought otherwise." n381 In the absence of any evidence of a broader meaning, he argues, we must assume that the Framers intended no more than the Blackstonian meaning. That meant the press clause did not even protect criticism of government, much less the more ambitious protection sometimes claimed today.

One must concede that no one had offered a comprehensive definition of freedom of the press. That does not, however, prove universal acquiescence in the Blackstonian meaning. We often become dissatisfied with an existing formulation before we are able to articulate an improved one. The law is replete with concepts which, though incapable of precise definition, nevertheless have force. One might hesitate, even today, to attempt a definition of freedom of the press, or even of freedom of speech, yet no one doubts that the latter, at least, is a very real protector of rights of expression. Thus the want of a definition of freedom of the press cannot be conclusive. Moreover, there is affirmative evidence of dissatisfaction with the Blackstonian view by 1789. The Quebec Address "Cato's Letters," the writings of several American editors and other dissenters, and the views of Madison himself all suggest that broader theories were indeed abroad in the land.

1. The Quebec Address

One of the earliest official American expressions on the subject of press freedom, the Quebec Address, n382 contained at least the germ of an expanded theory. In its view of the purposes of freedom of expression, n383 the Quebec Address was 150 years  [*524]  ahead of its time; not until the middle of the twentieth century did first amendment theory reject the view that the only fully protected expression was that relating to self-government. n384 The recognition of nongovernmental values of expression presaged Professor Emerson's expansive view of the system of freedom of expression, and the last clause of the Quebec Address envisioned something of the "checking function" that Professor Blasi describes. n385 The Quebec Address does not prove that the revolutionaries demanded more than freedom from prior restraint (although one might wonder how oppressive officers were to be shamed or intimidated into better behavior unless the press was to be freed from seditious libel), but it does reflect an expansive view of the benefits of press freedom.

2. "Cato's" Influence

The language of "Cato" found its way into several of the textual antecedents of the press clause. We have already observed Cato's authorship of the "bulwark of liberty" metaphor, which appeared in the Massachusetts resolution of 1768, the Virginia and North Carolina Constitutions, and Madison's proposed amendment. n386 Cato's insistence that freedom of speech is "essential to free Government" n387 is reflected in the New Hampshire Bill of Rights' declaration that "Liberty of the Press is essential to the security of freedom in a state." n388 Members of the Massachusetts House borrowed Cato's "Trustees of the People" analogy n389 when they argued in the 1768 resolution that it was their duty as "Guardians of the People's Rights" to defend freedom of the press. n390

Trenchard and Gordon, the journalists who called themselves Cato, articulated remarkably sophisticated views about libel. First, they insisted that a distinction should be drawn between public and private libels. Private libels might be actionable even  [*525]  if true, n391 but public men should not be protected from truthful attacks because their misdeeds, even if caused only by ignorance or folly rather than evil intention, are more dangerous to the public welfare. "The exposing therefore of publick Wickedness, as it is a Duty which every Man owes to Truth and his Country, can never be a Libel in the Nature of Things. . . ." n392

Trenchard and Gordon realized, however, that the defense of truth alone was not sufficient protection against the abuses of sedition law. Another problem was the tendency to construe innocent or doubtful expressions as criminal. This problem could not be solved either by the "reform" of giving the jury discretion to determine whether the defendant spoke with seditious intent or by adopting fixed rules to determine intent. n393 Instead, they argued for an innocent construction rule: "[W]hen an innocent or criminal Sense can be put upon Words or Actions, the Meaning of which is not fully determined by other Words or Actions, the most beneficent Construction ought to be made in favour of the Person accused." n394

Levy apparently interprets Cato's objections as criticisms only of the manner in which libel law had been interpreted and applied. n395 He asserts that Cato's understanding of freedom of the  [*526]  press was no different from the orthodox Blackstonian view. n396 But with regard to truth and intent, Trenchard and Gordon obviously had repudiated the existing common law of seditious libel. And a full reading of all their essays on libel makes it apparent that they objected to seditious libel in principle, n397 on grounds we would call "chilling effect":

[I]t is scarce possible, in a free Country, to punish by a general Law, any Libel, so much as it deserves; since such a Law, consisting of so many Branches, and being of such vast Latitude, would make all Writing whatsoever, how innocent so ever, and even all Speaking, unsafe. n398

They were not oblivious to the harm caused by libels, but concluded that on balance more harm resulted from attempts to punish seditious utterances. n399 Although they criticized some of the specific doctrines of seditious libel law and suggested modifications such as the innocent construction rule, their conclusion in their final essay on libel is that tinkering will prove futile. "[A]ll the Methods hitherto taken to prevent real Libels have proved ineffectual; and probably any Method which can be taken, will only prevent the World from being informed of what they ought to know, and will increase the others." n400

 [*527]  Levy dismisses Cato as "a flashing star in an orthodox sky that was occasionally but dimly lit by exponents of intellectual and political liberty." n401 The implication is that the ideas were too advanced to have influenced the Framers. But the newspapers and pamphlets of the period show that Cato's Letters were an important source of political ideas in the colonial period. n402 We know Cato's rhetoric found its way into the antecedents of the press clause; why should we conclude that the ideas did not?

3. American Dissenters

Levy asserts that "[t]here was no dissent from the proposition that the punishment of a seditious libeler did not abridge the proper or lawful freedom of the press." n403 He presumably excludes Trenchard and Gordon because they were Englishmen; but the reprinting of Cato's Letters in, as he says, "every colonial newspaper from Boston to Savannah" n404 is surely evidence that their opposition to seditious libel was shared by some in America. Indeed, since Levy's work was published, further research has demonstrated specific opposition in the American press to the Blackstonian view of seditious libel. Professor Teeter has shown not only that the newspapers regularly published attacks on public men that were inconsistent with the laws of seditious libel, but also that they published criticism of those laws. n405 In Philadelphia, articles in Francis Bailey's Freeman's Journal, though not repudiating seditious libel altogether, argued that freedom of the press ought to prohibit any restriction on "pieces relative to public measures, and evidently wr[itten] with a design to infuse the public good and general interests . . . whether they touch on men or measures, things or persons." n406 The rival Independent Gazetteer, published by Eleazer Oswald, argued for a distinction that came to be recognized by the Supreme Court 175 years later:

[C]onsiderable Latitude must be allowed in the Discussion of Public Affairs, or the Liberty of the Press will be of no Benefit to Society. As the Indulgence of Private Malice and Personal Slander should be checked and resisted by every legal Means, so a constant Examination into the Characters of Ministers and

 [*528]  Magistrates should be equally promoted and encouraged. n407

Another writer in the Independent Gazetteer attacked the law of seditious libel directly, arguing that it had been invented to "screen public officers and men in high places, not only from punishment, but from the clamours and complaints of the people, who were thereby restrained from publishing their faults, though capable of the clearest proof." n408 In a private letter, Oswald bemoaned the introduction of the infamous English law doctrine of libels into American courts. n409 Oswald later was indicted for a criminal libel, which prompted him to publish an address in which he denounced the doctrine of seditious libel as incompatible with law and liberty. n410 Levy accurately described this statement as brief and vague, and acknowledged that it might be regarded by some as an exception to his assertion that everyone accepted seditious libel. n411 Levy apparently did not have access to Oswald's earlier, more extensive discourses on the subject.

There appears to have been some judicial awareness of the dissatisfaction with seditious libel. Chief Justice Hutchinson of Massachusetts, who tried vigorously though unsuccessfully to prosecute seditious libel, acknowledged that his Blackstonian view of the matter was by no means universal. n412 Another Massachusetts Chief Justice, William Cushing, suggested in 1789 that the American view of freedom of the press was not Blackstone's. In a letter to John Adams, Cushing noted that since the Blackstonian view of freedom of the press merely prohibited prior restraints, it required no protection even for truthful accusations. n413 But the words of the press clause of the Massachusetts Declaration of Rights, he pointed out, "make no such distinction, and must exclude subsequent restraints, as much as previous restraints." n414

 [*529]  From this sketchy evidence, one cannot guess how widespread the repudiation of seditious libel was. But the statement that there was no dissent is unsupportable.

4. Madison's Views

The most important dissenter was Madison himself. In the Virginia Report, n415 written in 1799-80 as the Republicans' protest to the Sedition Act, Madison said the Blackstonian view of freedom of the press "can never be admitted to be the American idea of it." n416 He called the distinction between prior restraint and subsequent punishment "a mockery." n417 Although he was not prepared to define precisely "the proper boundary between liberty and licentiousness of the press," n418 he was certain that representative governments "require a greater freedom of animadversion than might be tolerated by the genius of such a government as that  [*530]  of Great Britain." n419 And he was equally certain that whatever the limits of freedom of the press, the Sedition Act transgressed them, because it "repressed that information and communication among the people, which is indispensable to the just exercise of their electoral rights." n420

Levy acknowledges that this view is inconsistent with his thesis. n421 But he concludes that "Madison's exposition of 1800 was not a reliable statement of the understanding prevalent at the time of the framing and ratification of the First Amendment." n422 As evidence, Levy relies primarily on the fact that Madison "remained silent in the Virginia ratifying convention of 1788 when George Nicholas, one of his closest supporters, defined freedom of the press as the absence of a licensing act." n423

Drawing inferences from silence is always risky. A delegate may remain silent for any number of reasons: for want of opportunity to respond, to avoid calling attention to the objectionable statement, or because of absence or inattention. In this instance, the inference is particularly dubious. Nicholas' remark came near the end of a long speech at the end of the day. n424 It was part of a digression from a discussion of the taxing power. In the first speech of the next day, Madison chastised his colleagues for their digressions, n425 and on one occasion when he did respond to them, he apologized for following their example. n426 The thrust of Nicholas' speech was fully compatible with Madison's own position: the Constitution should be ratified without prior amendments. The remark about press freedom n427 was a passing reference, hardly so conspicuous as to demand response.

The inference is invalid in this instance for a more fundamental reason: the incident occurred before Madison became a  [*531]  proponent of a bill of rights. When Nicholas spoke on June 10, 1788, Madison's position, as least insofar as it was publicly known, was the conventional Federalist view that amendments were unnecessary. The first evidence of a shift in his view came in a letter to Jefferson four months later. n428 It was not until early 1789 that he publicly endorsed a bill of rights. n429 Thus, there was no reason that Madison should have been expected to respond to Nicholas; Madison was in full agreement with Nicholas' argument that the Constitution should be ratified without amendments; Nicholas' comment about freedom of the press, whether right or wrong, was entirely irrelevant from Madison's point of view, because there would be no press clause to interpret. n430

Although nothing can fairly be inferred from Madison's silence at the Virginia ratifying convention, it is true that he never articulated a "libertarian" theory of freedom of the press until the Sedition Act controversy. Then he asserted not only that the press clause superseded the common law, but that it was so understood in the First Congress. n431 Levy refuses to accept the latter proposition, largely because "[t]here is simply no record of Madison's views during the period of the framing, except on the point that the national government was to have no authority whatsoever over speech and press." n432

 [*532]  But as Professor Blasi has pointed out, n433 Madison had outlined the theory of liberty upon which the Virginia Report was based ten years earlier when he presented his proposed amendments to the First Congress. In the Virginia Report, Madison explained that the British view of freedom of the press could not be the American view because of the "essential difference" between their respective forms of government. n434 In the British system, he explained, the danger of encroachments on individual rights is understood to be confined to the executive; the legislature is trusted not only to eschew such encroachments itself, but also to protect its constituents from the executive. n435 In the United States, on the other hand,

[t]he legislature, no less than the executive, is under limitations of power . . . . This security of the freedom of the press requires, that it should be exempt, not only from previous restraint by the executive, as in Great Britain, but from legislative restraint also; and this exemption, to be effectual, must be an exemption not only from the previous inspection of licensers, but from the subsequent penalty of laws. n436

Madison had drawn the same distinction between the British and American systems in 1789 when he introduced the Bill of Rights. The Magna Carta, he said, does not protect the "great rights, the trial by jury, freedom of the press, or liberty of conscience"; n437 it goes "no farther than to raise a barrier against the power of Crown; the power of the Legislature is left altogether indefinite." n438 But in the United States, the people "have thought it necessary to raise barriers against power in all forms and departments of Governments." n439

In addition, Madison's 1789 speech contains hints of a rather sophisticated understanding of the dangers of majoritarianism.

[I]n a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. . . . [It] is not found in either the executive or legislative departments of Government, but in the body of the people, operating by the majority against the minority. n440

Although he made no claim that his amendments would provide a legally effective barrier against the power of the community, he suggested that they would at least engender some degree of public opinion in favor of protecting individual rights against  [*533]  the majority. n441 The argument referred to individual rights generally, but it necessarily applied with special force to freedom of expression since that freedom is especially susceptible to nongovernmental restraint. Although these ideas do not constitute a full-fledged "libertarian theory," their articulation in 1789 suggests that the libertarian theories of the Virginia Report cannot be dismissed as a rationalization created from whole cloth in 1799.

Madison's ideas, together with contemporary criticism of seditious libel (Cato's immensely popular essays on freedom of expression and libel in particular) and the expansive generalities of the Quebec Address, demonstrate that Blackstone's crabbed view of press freedom was not the only source from which the Framers could have drawn.

VI. CONCLUSION

Though scholars today may debate whether the press clause has any significance independent of the speech clause, historically there is no doubt that it did. Freedom of the press -- not freedom of speech -- was the primary concern of the generation that wrote the Declaration of Independence, the Constitution, and the Bill of Rights. Freedom of speech was a late addition to the pantheon of rights; freedom of the press occupied a central position from the very beginning.

By the time the press clause became part of our Constitution in 1791, it had a considerable legislative history. The revolutionary state constitutions, the ratifying conventions, and the First Congress produced numerous expressions of the idea. These expressions and the freedom-of-the-press literature from which they were drawn leave little doubt that press freedom was viewed as being closely related to the experiment of representative self-government. Freedom of the press in America was a product of revolutionary thought. The issue was born of the conflict with England, and its first expressions as a binding principle of law came in the state constitutions drafted contemporaneously with the Declaration of Independence. In these earliest expressions, the relation between freedom of the press and the idea of self-government was explicit. The press was a "bulwark of liberty," n442 "essential to the security of freedom in a state." n443 It had to be protected, not for its own sake, but because it provided a necessary restraint on what the patriots viewed as government's natural tendency toward tyranny and despotism.

 [*534]  In the minds of members of the First Congress, the press clause was part of the new plan of government, no less than if it had been in the original Constitution. To the Anti-Federalists, it was an essential modification of the original Constitution; to the Federalists, it expressed what was already implicit in the Constitution. Their quarrel was only over the necessity of specifically guaranteeing freedom of the press. Neither side doubted its utility. Its value lay, as Professor Blasi says, in "checking the inherent tendency of government officials to abuse the power entrusted to them." n444 Because it plays this role, it is, in Justice Stewart's words, "a structural provision of the Constitution." n445

That the press clause has a distinct history does not mean, of course, that it must be given a meaning different from the speech clause today, or even that it had a different meaning in 1791. It is possible that checking government power was also the purpose of the speech clause. My own guess, however, is that the latter was more closely related to the incipient notion of individual autonomy that underlay the religion clauses. But in either event, most modern analysis, by focusing on the speech clause, gets the matter upside down. As a means of checking government power, speech was an afterthought, if it was viewed as serving that function at all; the press was expected to be the primary source of restraint.

The legislative history of the press clause has been ignored, largely because it is inconsistent with the conclusions of Leonard Levy, whose work in first amendment history has become the conventional wisdom of our generation. Levy's view is that freedom of the press meant nothing more to the Framers than freedom from prior restraint; the first amendment was not intended to enlarge that common law meaning, but it was intended to deprive Congress of all power over the press, reserving that power to the states and the federal courts. If Levy is right, the press could hardly have been expected to occupy any significant structural role. The press would have been at the mercy (except for prior restraints) of most of those whose abuses it was supposed to check.

Levy's thesis is not unassailable. It requires us to accept several remarkable propositions. We must believe that the press clause was directed at what was in America a non-issue -- prior restraint -- rather than at seditious libel, which had been the primary form of restraint on the press during the colonial period. We must believe that the press clauses that were included in nine state constitutions were intended to do nothing more than preserve the English common law. We must believe that the Framers were oblivious to, or hypocritical about, their own sedition in criticizing  [*535]  the government under the Articles of Confederation. We must believe that they did not understand that citizens of a representative democracy must be free to criticize government until the Sedition Act taught that lesson a few years later. We must believe that Madison in 1799 misrepresented (or misunderstood) his own views of ten years earlier. n446 Finally, we must reject what we have learned from scholars such as Henry Schofield, n447 Zechariah Chafee, n448 James Morton Smith, n449 and Thomas Cooley, n450 and judges such as Holmes, n451 Black and Douglas, n452 Jackson, n453 and Brennan n454 -- all of whom taught that the first amendment was intended to supersede the common law of seditious libel. I cannot claim to have proven Levy wrong, but I hope I have at least reopened the issue. A thesis that requires so many suspensions of disbelief ought not be preclusive.

I do not challenge Levy's conclusion that colonial America was a repressive society n455 in which there was little meaningful freedom of speech or press. n456 But I think the relevant experience, so far as the press clause is concerned, was the revolution, not the colonial period. And the press during the revolutionary period was free, in fact if not in law, to criticize the government seditiously and even licentiously. n457 That the American patriots did not extend this freedom to the Tory press n458 is beside the point. They may not have been sophisticated enough to realize that true freedom of expression must include freedom for even the most dangerous ideas, but they had seen the connection between press criticism and political change. Moreover, I accept Levy's conclusion that as legislators, judges, and executives, the Framers often  [*536]  behaved inconsistently with any expansive notion of freedom of expression; n459 the Framers sometimes seemed as eager to silence dissent as George III had been. But in this I share George Anastaplo's view: they meant for us to do as they said, not as they did. n460 The behavior of our leaders was no more a reliable indicator of the meaning of the Constitution then than it is today. Our executive still seeks to impose prior restraints on publication; n461 our Supreme Court denies full protection of the first amendment to our most popular medium of mass communication; n462 Congress attempts to control mailing of political propaganda. n463 If we do not accept these actions as definitive today, we should not assume that the actions of the Framers define the original understanding of the press clause.

The Sedition Act of 1798 is not definitive either. Its passage was indeed inconsistent with the view that the press clause was intended to protect the press as a critic of government. But the Sedition Act was also inconsistent with everything the Framers had said about the powers of the federal government. They had denied that the federal government had any power to control the press, even in the absence of a first amendment. The Sedition Act can best be understood as a lapse; those who passed it had to have known that it was unconstitutional, or at least that it was inconsistent with the original understanding of the constitution.

But whether they knew or not, the Sedition Act is hardly conclusive proof of the Framers' understanding of the press clause. The Federalist partisans who passed the Sedition Act were not the Framers, and the Federalists' views of the relationship between the people and their government were quite different from those upon which the Constitution and Bill of Rights were based.

I do not claim that the men who proposed, drafted, and ratified the first amendment had any comprehensive theory of freedom of the press. They undoubtedly held various views. Some  [*537]  may have viewed the press clause as a mere tactic to deprive the Anti-Federalists of one of the sticks with which they were beating the Constitution. But this cannot have been the dominant view; the stream of passionate rhetoric that flows through the legislative history of the press clause is too deep and too broad.

The sense one gets from that history is that most of the Framers perceived, however dimly, naively, or incompletely, that freedom of the press was inextricably related to the new republican form of government and would have to be protected if their vision of government by the people was to succeed.

 [*538]  APPENDIX: TEXTUAL ANTECEDENTS OF THE PRESS CLAUSE

The Liberty of the Press is a great Bulwark of the Liberty of the People: It is, therefore, the incumbent Duty of those who are constituted the Guardians of the People's Rights to defend and maintain it.

Resolution of the Massachusetts House (1768), in L. LEVY, LEGACY OF SUPPRESSION 69 (1960)

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

Address to the Inhabitants of Quebec (1774), in 1 B. SCHWARTZ, THE BILL OF RIGHTS 223 (1971)

That the freedom of the Press is one of the greatest bulwarks of liberty, and can never be restrained but by despotick Governments.

Virginia Declaration of Rights no. 12 (1776), in 1 B. SCHWARTZ, supra, at 235

That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.

North Carolina Declaration of Rights no. XV (1776), in 1 B. SCHWARTZ, supra, at 287

That the liberty of the press ought to be inviolably preserved.

Maryland Declaration of Rights no. XXXVIII (1776) in 1 B. SCHWARTZ, supra, at 284

That the liberty of the press ought to be inviolably preserved.

Delaware Declaration of Rights § 23 (1776), in 1 B. SCHWARTZ, supra, at 278

That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.

Pennsylvania Declaration of Rights no. XII (1776), in 1 B. SCHWARTZ, supra, at 266

Freedom of the press and trial by jury to remain inviolate forever.

GEORGIA CONSTITUTION of 1777, art. LXI, in 1 B. SCHWARTZ, supra, at 300

That the liberty of the press be inviolably preserved.

 [*539]  SOUTH CAROLINA CONSTITUTION OF 1778, art. XLIII, in 1 B. SCHWARTZ, supra, at 335

The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this Commonwealth.

Massachusetts Declaration of Rights no. XVI (1780), in 1 B. SCHWARTZ, supra, at 342

The Liberty of the Press is essential to the security of freedom in a state: it ought, therefore, to be inviolably preserved.

New Hampshire Bill of Rights no. XXII (1783), in 1 B. SCHWARTZ, supra, at 378

The liberty of the press shall be inviolably preserved.

Pinkney's Proposal to the Federal Convention (1787), in 1 B. SCHWARTZ, supra, at 437

That the liberty of the Press should be inviolably observed.

Pinkney and Gerry's Proposal to the Federal Convention (1787), in 1 B. SCHWARTZ, supra, at 439

That the people have a right to freedom of speech, of writing and of publishing their sentiments; therefore, the freedom of the press shall not be restrained by any law of the United States.

Proposal to the Pennsylvania Ratifying Convention no. 6 (1787), in 2 B. SCHWARTZ, supra, at 658

That the freedom of the press be inviolably preserved.

Address to the People of Maryland no. 12, Maryland Ratifying Convention (1788), in 2 B. SCHWARTZ, supra, at 734

That the people have a right to freedom of speech, and of writing and of publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

Declaration of Rights no 16, Virginia Ratifying Convention (1788), in 2 B. SCHWARTZ, supra, at 842

That the people have a right to freedom of speech, and of writing and of publishing their sentiments; that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

Declaration of Rights no. 16, North Carolina Ratifying Convention (1788), in 2 B. SCHWARTZ, supra, at 968

 [*540]  That the Freedom of the Press ought not to be violated or restrained.

New York Proposed Amendments (1788), in 2 B. SCHWARTZ, supra, at 913

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

Madison's Fourth Proposal to the House (1789), in 1 DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 451 (J. Gales & W. Seaton eds. 1834)

The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.

Proposal of the Select Committee of the House (1789), in 1 DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 759 (J. Gales ed. 1834) [hereinafter cited as Annals]

The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.

Passed by the House of Representatives (1789), in HISTORY OF CONGRESS EXHIBITING A CLASSIFICATION OF THE PROCEEDINGS OF THE SENATE AND THE HOUSE OF REPRESENTATIVES FROM MARCH 4, 1789 TO MARCH 31, 1793 at 167

The freedom of speech and of the press, in as ample a manner as hath at any time been secured by the common law, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government on redress of grievances, shall not be infringed.

Proposal to the Senate (1789), in JOURNAL OF THE FIRST SESSION OF THE SENATE 63, 70 (J. Gales & W. Seaton eds. 1820) [hereinafter cited as Senate Journal]

That Congress shall make no law, abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.

Proposal to the Senate (1789), in SENATE JOURNAL at 70-71

 [*541]  Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or the press, or the right of the people peaceably to assemble, and petition to the government for a redress of grievances.

Passed by the Senate (1789), in SENATE JOURNAL at 77

Congress shall make no law respecting an establishment of religion, or prohibiting a free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Proposal of Conference Committee art. 3, as reported to and passed by the House (1789), in 1 ANNALS at 948

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and petition the government for a redress of grievances.

Proposal of Conference Committee art. 3, as reported to and passed by the Senate, SENATE JOURNAL 87

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Resolution of Senate and House art. III (1789), SENATE JOURNAL 96

FOOTNOTES:
n1. U.S. CONST. amend. I.

n2. See, e.g., Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976) ("If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time."); New York Times Co. v. Sullivan, 376 U.S. 254, 256 (1964) ("We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct."); Gitlow v. New York, 268 U.S. 652, 664 (1925) ("The precise question presented . . . is, whether the statute . . . deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment."); Abrams v. United States, 250 U.S. 616, 618-19 (1919) ("[I]t is argued, somewhat faintly, that the acts charged against the defendants [publication of anarchist circulars] were not unlawful because within the protection of that freedom of speech and of the press which is guaranteed by the First Amendment to the Constitution of the United States. . . .").

n3. See Branzburg v. Hayes, 408 U.S. 665 (1972).

n4. See Houchins v. KQED, Inc., 438 U.S. 1 (1978); Saxbe v. Washington Post Co., 417 U.S. 843 (1974); Pell v. Procunier, 417 U.S. 817 (1974).

n5. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Gannett Co. v. DePasquale, 443 U.S. 368 (1979).

n6. See Zurcher v. Stanford Daily, 436 U.S. 547 (1978).

n7. See Herbert v. Lando, 441 U.S. 153 (1979).

n8. The press has lost numerous Supreme Court cases in which it claimed some right not available to everyone under the speech clause. See Herbert v. Lando, 441 U.S. 153, 160 (1979) (exemption from discovery of journalists' thought processes); Houchins v. KQED, Inc., 438 U.S. 1, 8-9 (1978) (access to jail); Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978) (exemption from police search); Nixon v. Warner Communications, Inc., 435 U.S. 589, 608-10 (1978) (access to Watergate tapes); Saxbe v. Washington Post Co., 417 U.S. 843, 850 (1974) (access to prisons); Pell v. Procunier, 417 U.S. 817, 834 (1974) (access to prisons); Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 381-83 (1973) (exemption from antidiscrimination regulations); Branzburg v. Hayes, 408 U.S. 665, 684-86 (1972) (refusal to disclose confidential sources); Associated Press v. United States, 326 U.S. 1, 19-20 (1945) (exemption from antitrust laws).

n9. See, e.g., cases cited supra note 2.

n10. E.g., Grosjean v. American Press Co., 297 U.S. 233, 250-51 (1936).

n11. Justice Stevens viewed Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 582 (1980) (Stevens, J., concurring), as "a watershed case" in the development of a constitutional right to gather news, but like other members of the majority, he viewed the right as emanating from the speech and press clauses, and as protecting the public as well as the press. See id. at 582-84.

n12. See infra notes 13-22 and accompanying text.

n13. 283 U.S. 697, 713-23 (1931).

n14. New York Times Co. v. United States, 403 U.S. 713, 714 (1971).

n15. 427 U.S. 539, 570 (1976).

n16. A system of prior restraint is in many ways more inhibiting than a system of subsequent punishment: it is likely to bring under government scrutiny a far wider range of expression; it shuts off communication before it takes place; suppression by a stroke of the pen is more likely to be applied than suppression through a criminal process; the procedures do not require attention to the safeguards of the criminal process; the system allows less opportunity for public appraisal and criticism; the dynamics of the system drive toward excesses, as the history of all censorship shows.

T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 506 (1970). See generally Blasi, Toward a Theory of Prior Restraint: The Central Linkage, 66 MINN. L. REV. 11 (1981); Barnett, The Puzzle of Prior Restraint, 29 STAN. L. REV. 539 (1977).

n17. See, e.g., Carroll v. President & Comm'rs, 393 U.S. 175, 179-85 (1968).

n18. 376 U.S. 254 (1964).

n19. See id. at 286.

n20. See St. Amant v. Thompson, 390 U.S. 727, 730-37 (1968); Henry v. Collins, 380 U.S. 356, 357 (1965). Cf. Pickering v. Board of Educ., 391 U.S. 563, 573-75 (1968) (Times standard applied in upholding right of teacher to publicly criticize superiors, absent proof of false statements knowingly or recklessly made). Inexplicably, however, the Court subsequently asserted that it has never decided whether New York Times Co. v. Sullivan applies to nonmedia defendants. Hutchinson v. Proxmire, 443 U.S. 111, 113 n. 16 (1979). In his Yale speech, Justice Stewart described New York Times Co. v. Sullivan as a press clause case and asserted that "the Court has never suggested that the constitutional right of free speech gives an individual any immunity from liability for either libel or slander." Stewart, "Or of the Press", 26 HASTINGS L.J. 631, 635 (1975) (emphasis in original). One explanation might be that New York Times Co. v. Sullivan applies to media defendants and individuals whose defamatory statements are published in the media; after all, the goal of encouraging robust discussion would hardly be met by protecting the press but not its sources of information. See Shiffrin, Defamatory Non-Media Speech and First Amendment Methodology, 25 UCLA L. REV. 915, 921-22 (1978). But this does not explain Henry v. Collins, 380 U.S. at 357, which required the application of the Times rule to statements not published in the media at all. As Professor Shiffrin points out, such an interpretation "does violence to the language and underlying philosophy of New York Times Co. v. Sullivan." Shiffrin, supra, at 922. On this rather confusing record, the most that can be said is that New York Times Co. v. Sullivan may yet turn out to have been a press clause case.

n21. See Craig v. Harney, 331 U.S. 367 (1947); Pennekamp v. Florida, 328 U.S. 331 (1946).

n22. See Bridges v. California, 314 U.S. 252, 266-78 (1941) (contempt conviction for criticizing judge violates first amendment). Bridges could have been treated as a press case, but it was not. Bridges was held in contempt not for the telegram he sent to the Secretary of Labor, but for causing the telegram to be published in the newspapers. His case was consolidated with Times-Mirror Co. v. Superior Court, which arose from a newspaper's editorials. The Supreme Court, however, resolved both cases by reference to general principles of "liberty of expression" and "freedom of speech and press," rather than freedom of the press specifically. See 314 U.S. at 259-63.

n23. Near v. Minnesota, 283 U.S. 697, 738 (1931). The majority relied heavily on "the conception of liberty of the press as historically conceived and guaranteed" and concluded that "it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publication." Id. at 713.

n24. Two cases seem to rest squarely on the press clause. They are Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) and Grosjean v. American Press Co., 297 U.S. 233 (1936). In Tornillo, the Court held that a newspaper could not be compelled to publish a reply to its editorial. 418 U.S. at 258. In resounding language, the Court denounced this "intrusion into the function of editors." Id. It said that "[t]he choice of material to go into a newspaper . . . constitute[s] the exercise of editorial control and judgement," which could not be subjected to governmental regulation. Id. A decision on this ground alone would be strong authority for the proposition that the press clause forbids governmental intrusion into the editorial process. There was an alternative ground for the decision, however, based on the familiar chilling effect doctrine, see id. at 256-57, which has been applied as fully to nonmedia speakers as to the press, see, e.g., Speiser v. Randall, 357 U.S. 513, 526 (1958) ("The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone. . . .").

Moreover, when the next opportunity arose to protect the editorial process from governmental intrusion, in Herbert v. Lando, 441 U.S. 153, 169-77 (1979), the Court declined to do so. And in Wooley v. Maynard, 430 U.S. 705, 714 (1977), the Court said that Tornillo is merely an illustration of the broader proposition that "[t]he right to speak and the right to refrain from speaking are complementary components of the broader concept of 'individual freedom of mind.'"

The second case, Grosjean, invalidated Huey Long's attempt to tax the newspapers that opposed him. The Court's review of the history of stamp taxes seems to suggest that the press clause does have a special role in limiting the government's power to tax newspapers. See 297 U.S. at 245-49. The Court went on, however, to make clear that this is not a general limitation on the taxing power, but only a prohibition against taxation that penalizes publishers on the basis of content. Id. at 250-51. This is another application of the familiar principle that authorities may not penalize a speaker because they disapprove of the content of his speech -- a principle that applies as fully to the individual speaker as to the press. See, e.g., Police Dep't v. Mosley, 408 U.S. 92, 102 (1972). Moreover, Speiser v. Randall, 357 U.S. 513, 518-20 (1958), demonstrates that use of the taxing power to limit speech rights of individuals is equally objectionable.

n25. Justice Douglas, however, did accord the press clause independent significance: "The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment to the public's right to know." Branzburg v. Hayes, 408 U.S. 665, 721 (1972) (Douglas, J., dissenting). See also Saxbe v. Washington Post Co., 417 U.S. 843, 863 (1974) (Powell, J., dissenting).

n26. But see Lewis, A Public Right to Know About Public Institutions: The First Amendment As Sword, 1980 SUP. CT. REV. 1, 19 ("One lingering constitutional argument is surely put to rest by Richmond Newspapers: the claim that the Press Clause of the First Amendment gives journalists a distinct and preferred status."). This is an unwarranted reading of Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). None of the six opinions in that case rejects the possibility that the press clause may have independent significance. The only Justice who addresses the subject is Brennan, who notes that the publisher did not contend that the media should enjoy greater access rights than the general public. "Since the media's right of access is at least equal to that of the general public, . . . this case is resolved by a decision that the state statute unconstitutionally restricts public access to trials." 448 U.S. 555, 586 n.2 (Brennan, J., concurring) (citation omitted). The most that can be said about Richmond Newspapers is that the publisher's counsel, mindful that an independent-significance argument had never commanded a majority of the court, chose instead an argument based on the access rights of the public.

n27. See First Nat'l Bank v. Bellotti, 435 U.S. 765, 796-802 (1978) (Burger, C.J., concurring). Burger argues that the press clause should not be read to give the institutional press any freedoms not enjoyed by all others because, first, "the history of the Clause does not suggest that the authors contemplated a 'special' or 'institutional' privilege," id. at 798, and second, the task of defining "the press" would involve some governmental entity in a process "reminiscent of the abhorred licensing system of Tudor and Stuart England -- a system the First Amendment was intended to ban from this country." Id. at 801.

n28. Id. at 798 ("The Court has not yet squarely resolved whether the Press Clause confers upon the 'institutional press' any freedom from government restraint not enjoyed by all others.").

n29. See Stewart, supra note 20, at 634. The numerous concurring and dissenting opinions in which Justice Stewart expressed these views are analyzed in Abrams, The Press is Different: Reflections on Justice Stewart and the Autonomous Press, 7 HOFSTRA L. REV. 563 (1979). See also Baker, Press Rights and Government Power to Structure the Press, 34 U. MIAMI L. REV. 819 (1980); Bezanson, The New Free Press Guarantee, 63 VA. L. REV. 731, 752-54 (1977); Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RESEARCH J. 521; Sack, Reflections on the Wrong Question: Special Constitutional Privilege for the Institutional Press, 7 HOFSTRA L. REV. 629, 630-37 (1979).

n30. Stewart, supra note 20, at 634.

n31. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), discussed in Stewart, supra note 20, at 633; Pittsburgh Press Co. v. Pittsburg Comm'n on Human Relations, 413 U.S. 376, 400-04 (1973) (Stewart, J., dissenting).

n32. Nimmer, Introduction -- Is Freedom of the Press a Redundancy: What Does it Add to Freedom of Speech?, 26 HASTINGS L.J. 639 (1975). See also Baker, supra note 29; Bezanson, supra note 29, at 782-83; Sack, supra note 29, at 635-36.

n33. Nimmer, supra note 32, at 658.

n34. Lewis, A Preferred Position for Journalism?, 7 HOFSTRA L. REV. 595 (1979).

n35. Van Alstyne, The Hazards to the Press of Claiming a "Preferred Position," 28 HASTINGS L.J. 761 (1977).

n36. See Van Alystyne, The First Amendment and the Free Press: A Comment on Some New Trends and Some Old Theories, 9 HOFSTRA L. REV. 1 (1980).

n37. Lange, The Speech and Press Clauses, 23 UCLA L. REV. 77 (1975).

n38. Two of our most prominent first amendment theorists, Chafee and Emerson, warn us that the historical inquiry is futile, either because "the framers had no very clear idea as to what they meant," see Chafee, Book Review, 62 HARV. L. REV. 891, 898 (1949), or because it is impossible at this late date to ascertain what they meant, see Emerson, Colonial Intentions and Current Realities of the First Amendment, 125 U. PA. L. REV. 737 (1977). Our most prominent first amendment historian, Leonard Levy, believes it is possible to ascertain what the Framers meant (to wit: very little), but tells us it does not matter, that we are not bound by their understanding anyway. See L. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY 4 (1960).

n39. Stewart, supra note 20, at 632-34.

n40. Nimmer, supra note 32, at 640-41.

n41. Lewis, supra note 34, at 599.

n42. Lange, supra note 37, at 90.

n43. For a brief etymology of the Fourth Estate metaphor, see id. at 90 n.79.

n44. Nimmer, supra note 32, at 641.

n45. See infra text accompanying notes 253-256.

n46. In addition to Levy's work, supra note 38, see generally A. MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948); C. ROSSITER, SEED-TIME OF THE REPUBLIC (1953); A. SCHLESINGER, PRELUDE TO INDEPENDENCE: THE NEWSPAPER WAR ON BRITAIN, 1764-1776 (1958); F. SIEBERT, T. PETERSON & W. SCHRAMM, FOUR THEORIES OF THE PRESS (1956); F. SIEBERT, FREEDOM OF THE PRESS IN ENGLAND, 1476-1776 (1952); J. SMITH, FREEDOM'S FETTERS (1956); Teeter, Press Freedom and the Public Printing: Pennsylvania 1775-83, 45 JOURNALISM Q. 445 (1968).

n47. The right to petition for redress of grievances can be traced back considerably farther. In 1641, the Massachusetts General Court adopted a code called the Body of Liberties. It included the following provision:

Every man whether Inhabitant or foreigner, free or not free shall have libertie to come to any publique Court, Councel, or Towne meeting, and either by speech or writeing to move any lawfull, seasonable, and material question, or to present any necessary motion, complaint, petition, Bill or information, whereof that meeting hath proper cognizance, so it be done in convenient time, due order, and respective manner.

Massachusetts Body of Liberties (1641), no. 12, in 1 B. SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 73 (1971). Freedom of speech and press, however, did not begin to appear in official documents until more than a century later.

n48. The publication attributed to the governor "a diabolical Thirst for Mischief" and portrayed him as "totally abandoned to Wickedness." It is reproduced in J. QUINCY, REPORTS OF CASES ARGUED AND ADJUDGED IN THE SUPERIOR COURT OF JUDICATURE OF THE PROVINCE OF MASSACHUSETTS BAY, BETWEEN 1761 and 1772, at 271-72 (1865).

n49. L. LEVY, supra note 38, at 69.

n50. See infra text accompanying notes 214-221.

n51. L. LEVY, supra note 38, at 68-69.

n52. Address to the Inhabitants of Quebec (1774), in 1 B. SCHWARTZ, supra note 47, at 223. The Declaration and Resolves of the First Continental Congress (1774), adopted 12 days earlier, did not mention freedom of speech or press, even though it purported to be a "Bill of Rights" and did mention the right to jury trial, the right to assemble and petition, and the right not to have soldiers quartered. See 1 B. SCHWARTZ, supra note 47, at 214-19.

n53. In May 1776, the Congress recommended that each state form an independent state government. Pursuant to the recommendation, most of the original 13 states adopted constitutions. Connecticut and Rhode Island continued to operate under their colonial charters. See 1 B. SCHWARTZ, supra note 47, at 289.

n54. The two states that did not mention freedom of the press were New York and New Jersey. Neither of those states' constitutions contained a bill of rights, although each protected some personal liberties in the body of the constitution. See id. at 256, 301.

n55. Id. at 235.

n56. Id. at 287 ("That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.").

n57. Id. at 284.

n58. Id. at 276, 278.

n59. Id. at 300, reprinted infra appendix, at 538.

n60. Id. at 335, reprinted infra appendix, at 539.

n61. Id. at 342.

n62. Id. at 378 ("The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved.").

n63. See Pennsylvania Declaration of Rights (1776), in 1 B. SCHWARTZ, supra note 47, at 263-66. The Pennsylvania Constitutional Convention convened the month after the Virginia Declaration was adopted. 1 B. SCHWARTZ, supra note 47, at 231, 262.

n64. 1 B. SCHWARTZ, supra note 47, at 266. This provision was adopted almost verbatim by Vermont in 1777. Id. at 324. Vermont is not included in my analysis of state constitutions because it was an independent republic and did not join the Union until 1791. Id. at 319.

n65. see infra notes 99-101, 107-115 and accompanying text.

n66. 1 B. SCHWARTZ, supra note 47, at 273. See infra note 211 and accompanying text. This provision was copied as section 32 in the Vermont Constitution of 1777. See 6 F. THORPE, THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES OF AMERICA 3746-47 (1909). See also supra note 64.

n67. The Gazette's policy of impartiality and the tenor of the debates that resulted were described in detail by Jeffrey A. Smith of the School of Journalism and Mass Communication, University of Wisconsin -- Madison, in a paper presented in July 1982, to the History Division of the Association for Education in Journalism in Athens, Ohio (on file at UCLA Law Review).

n68. E. EMERY & M. EMERY, THE PRESS AND AMERICA 55 (4th ed. 1978).

n69. M. JENSEN, THE NEW NATION: A HISTORY OF THE UNITED STATES DURING THE CONFEDERATION, 1781-89, at 430 (1958). Jensen was referring specifically to the newspapers of the 1780s, but his observation is equally applicable to those of the previous decade.

n70. Another interpretation of the clause, less literal but perhaps more likely, is that it guaranteed the right of printers to examine the proceedings of the legislature or government in their newspapers. This right may or may not have encompassed more than freedom from prior restraint. See infra note 211.

n71. See R. RUTLAND, THE BIRTH OF THE BILL OF RIGHTS 1776-1791, at 106-25 (1955).

n72. See 1 B. SCHWARTZ, supra note 47, at 438.

n73. Id. at 437.

n74. Id. at 438.

n75. Id. at 439.

n76. Id.

n77. See generally M. JENSEN, supra note 69; L. LEVY, supra note 38; A. SCHLESINGER, supra note 46; 1 B. SCHWARTZ, supra note 47.

n78. See L. LEVY, supra note 38, at 214; R. RUTLAND, supra note 71, at 119-89; 1 B. SCHWARTZ, supra note 47, at 443.

n79. This sensitivity may have been even more acute than the institutional self-interest we would expect from the modern press. The newspapers of the eighteenth century were produced not by hired professionals, but by printers -- entrepreneurs who were often financially dependent on one political faction or another. Many of them existed primarily to serve the propaganda needs of their political sponsors. See Teeter, supra note 46, at 448-51. See generally A. SCHLESINGER, supra note 46, at 51-66; I. THOMAS, THE HISTORY OF PRINTING IN AMERICA (2d ed. 1874). Press reaction to the lack of a press clause may therefore have reflected not only journalistic self-interest, but also the interests of both businessmen who sought protection for their financial arrangements and politicians who sought protection for their propaganda weapons.

n80. L. LEVY, supra note 38, at 214-15.

n81. Wilson, An Adress to a Meeting of the Citizens of Philadelphia (1787), in 1 B. SCHWARTZ, supra note 47, at 529.

n82. "Centinel" was probably Judge George Bryan (a member of the Pennsylvania Supreme Court and a leading anti-Federalist during the ratification controversy), his son, Samuel Bryan, or both. See PENNSYLVANIA AND THE FEDERAL CONSTITUTION, 1778-1788, at 6 (J. McMaster & F. Stone eds. 1888) [hereinafter cited as J. MCMASTER & F. STONE].

n83. Id. at 576.

n84. Id. (emphasis in original).

n85. Id. (emphasis in original).

n86. Id. (emphasis in original).

n87. See W. BERNS, THE FIRST AMENDMENT AND THE FUTURE OF AMERICAN DEMOCRACY 91 (1976).

n88. "Merely to denounce the omission of freedom of the press was superbly effective and even useful as a mask for less elevating, perhaps sordid, objections to the Constitution concerning such matters as tax and commerce powers." L. LEVY, supra note 38, at 215.

n89. Id. at 227-29.

n90. R. RUTLAND, supra note 71, at 131.

n91. Id. at 133-34.

n92. THE FEDERALIST NO. 38, AT 229 (J. Madison) (H. Lodge ed. 1888) ("It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it.").

n93. One of the "fundamental characteristics of colonial and Revolutionary thought . . . was the profound distrust of political power and its effects on men who possessed it." Kenyon, The Political Thought of the Anti-federalists, in THE ANTIFEDERALISTS xliv (C. Kenyon ed. 1966). For a brief but enlightening analysis of the politics of ratification, see Elkins & McKitrick, The Founding Fathers: Young Men of the Revolution, 76 POL. SCI. Q. 181 (1961).

n94. Kenyon, supra note 93, at xlv.

n95. Id.

n96. See Anastaplo, Book Review, 39 N.Y.U. L. REV. 735, 738 (1964).

n97. Only those three conventions demanded the adoption of an amendment guaranteeing freedom of the press. Four of the conventions (Delaware, New Jersey, Georgia, and Connecticut) apparently did not address the subject of a bill of rights at all. The South Carolina convention proposed amendments, but none dealt with personal liberties. Massachusetts and New Hampshire proposed amendments, including some fragmentary protections for personal liberties, but did not include press freedom among them. In Pennsylvania and Maryland, bills of rights (including press clauses) were proposed but not adopted by the conventions. Relevant portions of proceedings of all of the state ratifying conventions are reprinted in 2 B. SCHWARTZ, supra note 47, at 627-982.

n98. See BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, HISTORICAL STATISTICS OF THE UNITED STATES, COLONIAL TIMES TO 1970 (PT. 1), at 24-37 (1975). The Bureau estimates of total population in 1790 are: Virginia, 692,000; Pennsylvania, 434,000; North Carolina, 394,000; Massachusetts, 379,000; and New York, 340,000. If only the white population is considered, North Carolina drops from third to fifth; otherwise, the order remains the same. See id.

n99. The proposed version read: "That the people have a right to the freedom of speech, of writing and of publishing their sentiments; therefore, the freedom of the press shall not be restrained by any law of the United States." 2 B. SCHWARTZ, supra note 47, at 658.

n100. Id. at 628.

n101. The amendments were quoted verbatim in The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents (1787), in 2 B. SCHWARTZ, supra note 47, at 665-66. In addition to the text of the proposed amendments, the Dissent included lengthy explanations of the minority position. One passage listed what the dissenters considered to be the five principal unalienable rights, among them "the liberty of the press, that scourge of tyrants, and the grand bulwark of every other liberty and privilege." Id. at 668. The debt to Cato is evident. See infra text accompanying notes 214-219. The Dissent was widely disseminated among proponents of a bill of rights. According to one report, thousands of copies of the Dissent were printed, and a copy was addressed to every printer in the nation. See Letter from "Centinel," The Independent Gazetteer, Apr. 9, 1788, in J. MCMASTER & F. STONE, supra note 82, at 664, 666. Centinel claims that the post office delayed or prevented delivery of many of the copies, but even if that particular mailing was frustrated, there seems little doubt that the document was widely circulated. Id.

n102. 2 B. SCHWARTZ, supra note 47, at 734.

n103. See supra text accompanying note 57.

n104. 2 B. SCHWARTZ, supra note 47, at 734.

n105. Levy views the committee's comment as a "necessary implication" that the federal courts were to have power to hear libel prosecutions. L. LEVY, supra note 38, at 218. Conceivably, the committee believed the amendment would thwart attempts to prosecute libels in the federal courts. More likely, it thought the amendment would require the federal courts to observe the Zengerian modifications of seditious libel (i.e., to recognize the defense of truth and to allow the jury to determine seditiousness and malice). It might have meant only that federal libel prosecutions would have to be conducted in accordance with the common law, but that is scarcely an invaluable office for a "great and fundamental right."

n106. Virginia Ratifying Convention (1788), in 2 B. SCHWARTZ, supra note 47, at 762, 845.

n107. Id. at 842.

n108. See infra notes 137-140 and accompanying text.

n109. See supra text accompanying note 64.

n110. Whether speech would have been added, had Madison not included it, is problematical. A House committee added speech to Madison's "second" press clause, aimed at the states. See infra text accompanying notes 176-182. The committee may have done so, however, only because speech was mentioned in Madison's federal speech-press amendment.

n111. Pennsylvania Ratifying Convention (1787), in 2 B. SCHWARTZ, supra note 47, at 628, 657. See supra text accompanying notes 99-101.

n112. Virginia used the word "restrained" rather than "violated." See supra text accompanying note 107.

n113. 15 of the 20 amendments proposed by the ratifying convention can be traced to that source, and many were copied almost verbatim. Compare Virginia Ratifying Convention (1788), in 2 B. SCHWARTZ, supra note 47, at 840-42, with Virginia Declaration of Rights (1776), in 1 B. SCHWARTZ, supra note 47, at 234-36. This is hardly surprising, since most of those who had helped draft the Declaration of Rights were delegates to the ratifying convention 12 years later. See 2 B. SCHWARTZ, supra note 47, at 762. The convention's recommendations were produced in 24 hours by a committee that included George Mason, Patrick Henry, James Madison, John Marshall, and George Wythe. Id. at 838-39.

n114. Virginia Declaration of Rights (1776), in 1 B. SCHWARTZ, supra note 47, at 234-36.

n115. The right to peaceably assemble, to instruct representatives, and to petition for redress of grievances came from amendment 15 of the Pennsylvania constitution. The protection for conscientious objection came from amendment 8. Virginia Ratifying Convention (1788), in 2 B. SCHWARTZ, supra note 47, at 842.

n116. See 2 B. SCHWARTZ, supra note 47, at 933.

n117. North Carolina finally ratified the original Constitution on November 21, 1789 -- after the Bill of Rights had been passed by Congress, but before it had been ratified by the states. See id. at 933.

n118. New York Proposed Amendments (1788), in 2 B. SCHWARTZ, supra note 47, at 911, 913.

n119. Id.

n120. See supra note 111 and accompanying text.

n121. See supra notes 53-70 and accompanying text.

n122. See supra notes 77-120 and accompanying text.

n123. See infra text accompanying notes 149-153.

n124. Because of the lack of a quorum in the Senate and various other difficulties, the First Congress did not convene until early April, a month behind schedule. See R. RUTLAND, supra note 71, at 197. In addition to the numerous needs of organizing the new government, Congress faced the crucial issue of raising revenue, which it proposed to accomplish primarily by levying duties on imports. Since revenue bills had to originate in the House, resolution of that problem was a major obstacle to Madison's securing House consideration of his amendments. See id. at 197-201; 2 B. SCHWARTZ, supra note 47, at 1006-07.

n125. Official Notice of Ratification (1792), in 2 B. SCHWARTZ, supra note 47, at 1203.

n126. There was the version that Madison introduced, a new version by a House select committee (which was passed by the House unchanged), the Senate's initial revision of the House language, a second Senate version produced by a floor amendment, and the final version produced by a conference committee. The texts of these versions, as gleaned from 1 THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 452, 759, 948 (1789) (J. Gales ed. 1834) [hereinafter cited as ANNALS], and other sources appear in the Appendix following this Article.

A sixth version appears in 2 F. THORPE, THE CONSTITUTIONAL HISTORY OF THE UNITED STATES 257 (1901). This appears to be an erroneous reprinting of the report of the Special Committee of Three that was appointed to rearrange the amendments passed by the House for transmission to the Senate, which appears in JOURNAL OF THE FIRST SESSION OF THE SENATE 63-64 (1789) (J. Gales & W. Seaton printers 1820) [hereinafter cited as SENATE JOURNAL]. Thorpe's version omits the phrase "and consult for their common good," but that phrase was in the House select committee version, which the House approved without change, see 1 ANNALS, supra, at 776, and in the amendment as it reached the Senate, see SENATE JOURNAL, supra, at 63-64.

n127. Letter from Madison to Washington (Feb. 15, 1788), in 10 THE PAPERS OF JAMES MADISON 510 (R. Rutland ed. 1977).

n128. See R. KETCHAM, JAMES MADISON, A BIOGRAPHY 277 (1971).

n129. See Letter from Jefferson to Madison (Dec. 20, 1787), in 1 B. SCHWARTZ, supra note 47, at 605-08; Letter from Madison to Jefferson (Oct. 17, 1788), in 1 B. SCHWARTZ, supra note 47, at 614-18; Letter from Jefferson to Madison (Mar. 15, 1789), in 1 B. SCHWARTZ, supra note 47, at 620-23.

n130. Letter from Madison to Jefferson (Oct. 17, 1788), in 1 B. SCHWARTZ, supra note 47, at 615-16.

n131. See the letters from Jefferson cited supra note 129.

n132. Letter from Madison to Jefferson (Oct. 17, 1788), in 1 B. SCHWARTZ, supra note 47, at 616-17.

n133. See 2 B. SCHWARTZ, supra note 47, at 1006.

n134. 1 ANNALS, supra note 126, at 440-68.

n135. Id. at 685-691.

n136. See infra text accompanying notes 177-182.

n137. 1 ANNALS, supra note 126, at 451.

n138. See infra text accompanying note 225. Madison inelegantly modified the Virginia language by the awkward phrase "shall not be deprived or abridged of."

n139. See 1 ANNALS, supra note 126, at 690.

n140. Id. at 759. The text of the amendments as revised by the committee of eleven was not officially reported in any single place; it must be pieced together from statements of each proposition as they were taken up seriatim for debate by the House.

n141. See, e.g., id. at 746, 753, 757, 763-64, 779, 782, 789-90.

n142. Letter from Fisher Ames to George R. Minot (July 23, 1789), in 1 WORKS OF FISHER AMES 65 (S. Ames ed. 1854).

n143. See 1 ANNALS, supra note 126, at 745-78.

n144. Id. at 759.

n145. Id.

n146. Id. at 761.

n147. Id.

n148. Judging by the reports, the debate on the right to instruct representatives lasted 10 times longer than any other first amendment debate. See id. at 761-76.

n149. Id. at 768-76.

n150. Id. at 770.

n151. Id. at 775-76.

n152. Id. at 772.

n153. If they are tired of it, let it be postponed until another session, when it canbe attended to with leisure and good temper. Gentlemen now feel the weather warm, and the subject is warm; no wonder it produces some degree of heat. Perhaps, as our next will be a winter session, we may go through more coolly and dispassionately.

Id. at 776.

n154. Id.

n155. Id.

n156. Id. at 808.

n157. The sessions of the Senate were closed throughout the period during which the Bill of Rights was being drafted, and were not opened until 1794. Some newspapers, most notably Philip Freneau's Anti-Federalist National Gazette, criticized this practice and demanded that the Senate be opened. Their arguments were based not on the press clause, however, but on general principles of free government. See generally Grotta, Philip Freneau's Crusade for Open Sessions of the U.S. Senate, 48 JOURNALISM Q. 667 (1971). For a discussion of the Framers' intentions regarding press access, see Pember, Founders (Meeting in Secret) Protected Our Right to Publish, But Not to Gather the News, BULL. AM. SOC'Y NEWSPAPER EDS., Dec. 1978-Jan. 1979, at 6; Nelson, Separating the Inseparable? Linking News-Gathering with Publishing Called 'Dubious', BULL. AM. SOC'Y NEWSPAPER EDS., Dec. 1978-Jan. 1979, at 6; Gillmor, Even Our Supreme Court Friends Equivocate About the 'Right' that Protects News-Gathering, BULL. AM. SOC'Y NEWSPAPER EDS., Dec. 1978-Jan. 1979, at 8; see also Wiggins, 1st Amendment Protects Right to Gather News, EDITOR & PUBLISHER, Dec. 30, 1978, at 60; Brown, Shop Talk at 30; A Rebuttal to Wiggins, EDITOR & PUBLISHER, Feb. 17, 1979, at 58.

The meetings of the Federal Constitutional Convention were closed, but a number of the state constitutional conventions of 1776-80 were open; the House of Representatives held public sessions from the beginning. See W. ADAMS, THE FIRST AMERICAN CONSTITUTIONS 249-51 (1980).

n158. SENATE JOURNAL, supra note 126, at 70.

n159. Id.

n160. Professor Nelson reminds me that defeat of the qualifying language has not kept editors from being imprisoned under the Alien and Sedition Acts, the Espionage Act of 1918, and the Smith Act of 1940, as well as for contempt of court and legislature, arguably for nothing more than criticizing government. Letter from Harold L. Nelson to David A. Anderson (Aug. 14, 1981) (on file at UCLA Law Review). However imperfect our system may be, it is not comparable to one in which seditious libel prosecutions would have been constitutionally authorized.

n161. SENATE JOURNAL, supra note 126, at 70.

n162. Id. at 70-71.

n163. Other provisions were changed for less compelling editorial reasons. For example, Madison's proposal that "no state shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases" was changed to "the equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any State," in order to "make it an affirmative proposition." See 1 ANNALS, supra note 126, at 784.

n164. See id. at 796. The "Congress shall make no law" formulation first appeared in the religion amendment of the New Hampshire Ratifying Convention: "Congress shall make no laws touching Religion, or to infringe the rights of Conscience." 2 B. SCHWARTZ, supra note 47, at 758. The formulation appears to have no special significance in that document; the New Hampshire recommendations, copied largely from Massachusetts, were not a bill of rights to be appended to the Constitution, but were primarily structural alterations dealing with the powers of the federal government, particularly the Congress. Since several of the other amendments are phrased as prohibitions or limitations on Congress, it may have merely seemed consistent to also begin the religious guarantee with the same phrase.

n165. SENATE JOURNAL, supra note 126, at 77.

n166. 1 ANNALS, supra note 126, at 939. The conferees were Vining, Sherman, and Madison, for the House, and Ellsworth of Connecticut, Carroll of Maryland, and Patterson of New Jersey, for the Senate. 2 B. SCHWARTZ, supra note 47, at 1159.

n167. The House version prohibited Congress from making any law establishing religion. 1 ANNALS, supra note 126, at 796. The Senate narrowed that to a prohibition against the establishment of "articles of faith, or a mode of worship." SENATE JOURNAL, supra note 126, at 77. Apparently the Senate was willing to forbid the establishment of particular creeds, but not of religion itself. Presumably, it was Madison who insisted on the House version. 2 B. SCHWARTZ, supra note 47, at 1159.

n168. SENATE JOURNAL, supra note 126, at 96. There were minor discrepancies between the versions of the Conference Committee report as they reached the House and Senate. As a result, the amendment as passed by the House referred to "a free exercise," while the Senate version referred to "the free exercise." The Senate version used semicolons after the free exercise and press clauses, while the House version used commas throughout. Whoever drafted the concurrent resolution to submit the amendment to the states used the House's punctuation and the Senate's free exercise clause. See 1 ANNALS, supra note 126, at 948; SENATE JOURNAL, supra note 126, at 87, 96.

n169. SENATE JOURNAL, supra note 126, at 96.

n170. See infra note 191.

n171. 2 B. SCHWARTZ, supra note 47, at 1164.

n172. 1 id. at 221, 223.

n173. Id. at 266.

n174. 2 id. at 842.

n175. 1 ANNALS, supra note 126, at 451.

n176. See supra notes 136-138 and accompanying text.

n177. See 1 ANNALS, supra note 126, at 452.

n178. See 2 F. THORPE, supra note 126, at 226. The committee, as we have seen, left us no explanation for its revisions.

n179. 1 ANNALS, supra note 126, at 783.

n180. Id. at 784.

n181. There is no record of the vote. The report of the House debate says simply that "the clause was adopted." Id.

n182. The state speech-press clause was article XIV in the list of amendments sent to the Senate. See 2 F. THORPE, supra note 126, at 258. The Senate Journal says only that on September 7, "It passed in the negative." SENATE JOURNAL, supra note 126, at 72.

n183. The exception was Pennsylvania. See supra text accompanying note 64.

n184. In New York, the ratifying convention grouped freedom of the press with the right to assemble, petition, and instruct representatives, but did not mention speech. See supra text accompanying note 118.

n185. See supra text accompanying note 137. See also 1 ANNALS, supra note 126, at 451.

n186. We have no record of what was said in the Senate, of course. But if there had been a major debate in that body on freedom of the press, it seems likely that some hint of it would have surfaced in subsequent years, particularly during the Sedition Act debates.

n187. Exactly when the Bill of Rights took effect is a matter of some dispute. Thorpe contends it was effective when Rhode Island became the ninth state to ratify in June 1790. See 2 F. THORPE, supra note 126, at 261. Schwartz counts Virginia as the tenth state to ratify, on December 15, 1791, and considers that the effective date of the Bill of Rights. See 2 B. SCHWARTZ, supra note 47, at 1172. Rutland contends that the admission of Vermont to the union on March 4, 1791, raised the number needed for ratification to eleven. He counts Vermont's ratification, on November 3, 1791, as the tenth and Virginia's as the eleventh and decisive ratification. See R. RUTLAND, supra note 71, at 217. Jefferson's official notice of ratification was dated March 1, 1792. See supra text accompanying note 125.

n188. Massachusetts, Connecticut, and Georgia did not ratify the Bill of Rights until 1939. 2 B. SCHWARTZ, supra note 47, at 1172.

n189. Maxwell v. Dow, 176 U.S. 581, 602 (1900).

n190. See 2 B. SCHWARTZ, supra note 47, at 1171; L. LEVY, supra note 38, at 224-25.

n191. Proposed Amendment I, fixing various ratios of constituents per congressman, was rejected or postponed by Delaware and Pennsylvania. See 2 B. SCHWARTZ, supra note 47, at 1196-97, 1201. Amendment II, limiting Congress's power to increase compensation of its members, was rejected by New Hampshire, Pennsylvania, New York, Rhode Island, and New Jersey. See id. at 1194, 1197-1201. To these should be added Massachusetts, Georgia, and Connecticut, which did not immediately ratify any of the original amendments. See supra note 188.

n192. See 2 B. SCHWARTZ, supra note 47, at 1172-76, 1184-93. From this absence of comment, Levy infers that freedom of the press must have been understood in its Blackstonian sense. Any more novel definition would have required explanation, he reasons. See L. LEVY, supra note 38, at 225. The inference is dubious. The Bill of Rights contained numerous provisions that had no established common-law meanings -- the establishment clause, the free exercise clause, the due process clause, to name the most obvious. Yet there is no record of any debate about the meaning of these, either. The premise that lack of debate precludes new meanings is faulty. There is no reason why expansion of an existing concept should require discussion if adoption of entirely new ones does not.

n193. There is also the possibility that they meant several things.

To ask, in each instance, whether the framers "intended" the specific or the general is to pose a question that almost invariably is unanswerable. The question assumes that they intended one or the other, but not both. But the issues did not arise for the framers in a way that forced such a choice: they could have intended both simultaneously because, viewing them as compatible, they had no reason to choose between them.

Sandalow, Constitutional Interpretation, 79 MICH. L. REV. 1033, 1036 (1981).

n194. See supra notes 53-68 and accompanying text.

n195. See supra notes 98-120 and accompanying text.

n196. See supra notes 121-182 and accompanying text.

n197. L. LEVY, supra note 38, at 5-6.

n198. Id. at 5.

n199. First Nat'l Bank v. Bellotti, 435 U.S. 765, 800 (1978) (Burger, C. J., concurring).

n200. See, e.g., N.J. CONST. art. I, para. 6; N.Y. CONST. art. I, § 8; OHIO CONST. art. I, § 11; OR. CONST. art. I, § 8; TEX. CONST. art. I, § 8. Such a clause seems to have first appeared in 1790. See PA. CONST. of 1790, art IX, § 7, in 5 F. THORPE, supra note 66, at 3100.

n201. See supra notes 159-160 and accompanying text.

n202. The Federalists, of course, soon came to appreciate the problems of a free press acutely. See infra text accompanying notes 364-372.

n203. Wilkes was the editor of the North Briton. In 1763 he published a highly insulting attack on George III and was promptly arrested, along with 48 others, for libel. He fled to Paris, continued to attack the king, and became a popular hero in England. When he eventually returned to England he was jailed, but he was elected to the House of Commons three times while in prison, became one of the most popular political figures in England, and actively supported the American cause. His prosecution touched off a fervid discussion of freedom of the press in England, to which the pseudonymous "Father of Candor" contributed a widely circulated tract. See generally L. LEVY, supra note 38, at 145-62. For a discussion of "Cato's" role, see infra text accompanying notes 386-402.

n204. See infra text accompanying notes 328-338; V. BURANELLI, THE TRIAL OF PETER ZENGER (1957).

n205. 1 B. SCHWARTZ, supra note 47, at 228-30.

n206. Id. at 229.

n207. Elkins & McKitrick, supra note 93, at 202. See generally W. ADAMS, supra note 131.

n208. 1 B. SCHWARTZ, supra note 47, at 264.

n209. For example, article IV reads: "That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them." Id. at 264-65.

n210. See supra text accompanying notes 66-68.

n211. One might argue that since the Pennsylvanians thought it necessary to add a second provision specifically protecting freedom to criticize government, they must not have understood the first as providing that protection. Since the other state constitutions and the federal Bill of Rights contained no analogue to the second Pennsylvania press clause, they must not have contemplated protecting press criticism of government.

Assuming for the sake of argument the validity of the negative implication, the answer is that the first Pennsylvania press clause was different from those of the other state constitutions; unlike all the others, it was primarily a speech clause. It mentioned freedom of the press only as an adjunct to the people's right to speak, write, and publish their sentiments. See supra text accompanying note 64. Given the peculiarity of the first Pennsylvania clause, inclusion of the second does not preclude the conclusion that the single press clauses of the other states and the first amendment were understood as protecting the press's role as government critic.

The Federalist Party succeeded in overthrowing the 1776 Pennsylvania Constitution in 1790, and in the revision the second press clause was combined with the first one:

That the printing-presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.

PA. CONST. of 1790, art. IX, § 7, in 5 F. THORPE, supra note 66, at 3100. To this was added an important modification, however:

In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.

Id. In 1790 at least, freedom to examine the proceedings of government obviously did not include freedom from seditious libel. The Pennsylvania Federalists of 1790 "accepted the concept that a republican form of government can be politically libeled and that the offender should be criminally prosecuted." L. LEVY, supra note 38, at 204.

The language added in 1790 did not find its way into the federal press clause, however, and it is not clear that the assumptions of the Pennsylvania Federalists of 1790 should be attributed to the democrats of 1776. The 1790 constitution "was exceedingly reactionary and undid much of the work of the early framers." J. SELSAM, THE PENNSYLVANIA CONSTITUTION OF 1776, at 259 (1971). The 1790 press clause may have merely articulated an assumption about libel that had been unspoken in 1776, or it may have reflected a narrower view of press freedom. Be that as it may, there is no doubt that the Pennsylvania Constitution of 1776 explicitly recognized a relationship between press freedom and criticism of government.

n212. 1 B. SCHWARTZ, supra note 47, at 223.

n213. 2 J. MCMASTER & F. STONE, supra note 82, at 576.

n214. 1 CATO'S LETTERS: ESSAYS ON LIBERTY, CIVIL AND RELIGIOUS, AND OTHER IMPORTANT SUBJECTS 96-103 (Essay No. 15, Of Freedom of Speech: That the same is inseparable from Publick Liberty, Feb. 4, 1720) [hereinafter cited as CATO'S LETTERS]. I have used the 1791 Da Capo reprint of the sixth edition, which was published in London in 1755. Pagination of the reprint corresponds to that of the original.

n215. The letters were published pseudonymously in newspapers beginning in 1720, and then were collected in four volumes first published in 1733. Gordon acknowledged his and Trenchard's authorship in a preface to the sixth edition in 1755. See id. at ix-x, xxx.

n216. C. ROSSITER, supra note 46, at 141.

n217. 1 CATO'S LETTERS, supra note 214, at 100.

n218. In specific contexts, of course, liberty could also have a more limited meaning: e.g., "nor be deprived of life, liberty, or property without due process of law . . . ." See U.S. CONST. amend. V.

n219. 1 CATO'S LETTERS, supra note 214, at 96.

n220. L. LEVY, supra note 38, at 68.

n221. Id. at 69.

n222. Address to the Inhabitants of Quebec (1774), in 1 B. SCHWARTZ, supra note 47, at 223. See supra text accompanying note 52.

n223. New Hampshire Bill of Rights art. XXII (1776), in 1 B. SCHWARTZ, supra note 47, at 378. Identical, except for a difference in capitalization, is Massachusetts Declaration of Rights art. XVI (1780), in 1 B. SCHWARTZ, supra note 47, at 342, 378.

n224. Virginia Declaration of Rights art. 12 (1776), in 1 B. SCHWARTZ, supra note 47, at 235. See supra note 55 and accompanying text. North Carolina's article guaranteeing freedom of the press is identical to the equivalent provision in the earlier Virginia Declaration. See supra note 116 and accompanying text.

n225. See supra text accompanying notes 106-109.

n226. 1 ANNALS, supra note 126, at 451.

n227. Stewart, supra note 20, at 633.

n228. Id. at 634.

n229. Blasi, supra note 29, at 538. Without relying specifically on the press clause, the Supreme Court has often observed a connection between the first amendment and scrutiny of government. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980) (plurality opinion) (The expressly guaranteed freedoms of the first and fourteenth amendments "share a common core purpose of assuring freedom of communication on matters relating to the functioning of government."); Mills v. Alabama, 384 U.S. 214, 218 (1966) ("a major purpose of that Amendment was to protect the free discussion of governmental affairs").

n230. See infra notes 302-340 and accompanying text.

n231. See infra notes 237-256 and accompanying text.

n232. See infra note 293 and accompanying text.

n233. See supra notes 177-182 and accompanying text.

n234. Act of July 6, 1798, ch. 66, 1 Stat. 577 (expired); Act of July 14, 1798, ch. 74, 1 Stat. 596 (expired).

n235. See L. LEVY, supra note 38, at 177-79.

n236. See L. LEVY, supra note 38, at 299-308. See generally J. SMITH, FREEDOM'S FETTERS (1956).

n237. See, e.g., J. SMITH, supra note 236, at 424-30. Smith expressed the then-universal view that "one of the objects of the American Revolution was to abolish the common law restriction on liberty of the press, especially on political discussion." Id. at 427.

n238. Z. CHAFEE, FREE SPEECH IN THE UNITED STATES 21 (1941).

n239. L. LEVY, supra note 38, at 214, 247-48. For proof that there is nothing entirely new under the sun, see Corwin, Freedom of Speech and Press Under the First Amendment: A Resume, 30 YALE L.J. 48 (1920). Corwin argued that the first amendment was not intended to proscribe seditious libel prosecutions, but was intended to reserve that field to the states. Corwin was defending the Espionage Act of 1917. He asserted that Justice Holmes was wrong when he argued in Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting), that the first amendment had repudiated the law of seditious libel. Corwin, supra, at 50. Levy reached the same conclusion 40 years later. See L. LEVY, supra note 38, at 248.

n240. "At the time of its original publication, Legacy of Suppression was the best book ever written in the United States on freedom of speech and press." W. BERNS, supra note 87, at 84. For other reviews, see Anastaplo, Book Review, supra note 96; Cound, Book Review, 36 N.Y.U. L. REV. 253 (1961); Jensen, Book Review, 75 HARV. L. REV. 456 (1961); Storing, Book Review, 55 AM. POL. SCI. REV. 385 (1961). See also H. KALVEN, THE NEGRO AND THE FIRST AMENDMENT 220 n.102 (1966).

n241. See Levy, Introduction to FREEDOM OF THE PRESS FROM ZENGER TO JEFFERSON xix (L. Levy ed. 1966) [hereinafter cited as Introduction, FREEDOM OF THE PRESS]; L. LEVY, JEFFERSON AND CIVIL LIBERTIES (1963); Levy, Liberty and the First Amendment: 1790-1800, 68 AM. HIST. REV. 22 (1962).

n242. There have been several notable skeptics. Historian Merrill Jensen pointed out that Levy's history was based on theory, not practice. Despite the repressive legal doctrines that Levy described, newspapers and citizens of the revolutionary period debated about policies and politicians in terms that would be libelous by any standard. Jensen, supra note 240, at 457.

Professor Dwight Teeter demonstrated that newspapers of the revolutionary period not only exercised their freedom, but occasionally articulated libertarian ideas about the nature of freedom of expression -- ideas Levy was unable to detect until the time of the Sedition Act controversy. D. Teeter, A Legacy of Expression: Philadelphia Newspapers and Congress During the War for Independence, 1775-1783, at 331 (1966) (unpublished dissertation for University of Wisconsin, Mass Communications).

George Anastaplo argued that Levy underestimated the importance of the change from Britain's monarchical regime to a republican regime in which full discussion of public ideas was a requisite. Anastaplo, supra note 96, at 736-40. See also G. ANASTAPLO, THE CONSTITUTIONALIST 102-04 (1971) (discussing the failure of Legacy of Suppression to "take account of the change of regime in America").

Richard Buel, Jr., contended that Levy overlooked the "opposition ideology" from which the press clause emerged. In this view, the importance of the press lay in its usefulness in uniting "the people" against the crown in particular and executive authority in general. Since the primary purpose of press freedom was to bolster the masses in their struggle against constituted authority, suppression of the press when it was used against "the people" was not inconsistent. See Buel, Freedom of the Press in Revolutionary America: The Evolution of Libertarianism 1760-1820, in THE PRESS AND THE AMERICAN REVOLUTION 59 (B. Bailyn & J. Hench eds. 1980).

n243. Introduction, FREEDOM OF THE PRESS, supra note 241, at lv.

n244. Id. at xlix-lv. The statement of the common law rule invariably relied upon is Blackstone's:

The liberty of the press . . . consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievious, or illegal, he must take the consequences of his own temerity.

4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *151-52.

n245. Introduction, FREEDOM OF THE PRESS, supra note 241, at lvi-lvii.

n246. Id. at lix.

n247. See infra text accompanying notes 290-293.

n248. L. LEVY, supra note 38, at xii.

n249. Id. at 309. "We may miss the comforting assurance of having the past's original intentions coincide with present preferences. Yet the case for civil liberties is so powerfully grounded in political philosophy's wisest principles, as well as the wisest policies drawn from experience, that it need not be anchored to the past." Id. at 4.

n250. Id. at viii. George Anastaplo also is correct: "The evidence of old thought . . . is inevitably inconclusive." Anastaplo, supra note 96, at 736.

n251. "Sea-men have a Custom when they meet a Whale, to fling him out an empty Tub, by way of Amusement, to divert him from laying violent Hands upon the Ship." Preface to J. SWIFT, A TALE OF A TUB, in THE WRITINGS OF JONATHAN SWIFT 284 (R. Greenberg ed. 1973) (based on Swift's augmented edition of 1710).

The metaphor was often employed during the Bill of Rights controversy. See K. Bowling, A Tub to the Whale: The Adoption of the Federal Bill of Rights 26, 29, 35, 44 (1968) (unpublished dissertation, University of Wisconsin). It appeared in a letter from "Centinel" in 1788: "Like a barrell thrown to the whale, the people were to be amused with fancied amendments, until the harpoon of power should secure its prey, and render resistance ineffectual." Independent Gazetteer, October 7, 1788, quoted in K. Bowling, supra, at 44. An anonymous writer, called "Pacificus" (believed to have been Noah Webster), accused Madison and his colleagues of spending their time "in throwing out an empty tub to catch people, either factious or uninformed, who might be taken more honorably by reason and equitable laws." New York Daily Advertiser, August 17, 1789, in K. Bowling, supra, at 44. It was also used in the House debates on the Bill of Rights to deprecate the amendments that were being considered. See 1 ANNALS, supra note 126, at 774.

n252. L. LEVY, supra note 38, at 225.

n253. Introduction, FREEDOM OF THE PRESS, supra note 241, at lv. See also L. LEVY, supra note 38, at 233-36. Levy's conclusions were much more tentative in his 1960 book than in his 1966 essay, which serves as the introduction to Freedom of the Press From Zenger to Jefferson, supra note 241. In the former, he said:

[N]o one can say for certain what the Framers had in mind, for although the evidence all points in one direction there is not enough of it to justify cocksure conclusions. It is not even certain that the Framers themselves knew what they had in mind; that is, at the time of the drafting and ratification of the First Amendment, few among them if any at all clearly understood what they meant by the free speech-and-press clause, and it is perhaps doubtful . . . that they represented a consensus.

L. LEVY, supra note 38, at 236. Similarly, "there is a question whether it was not a primary purpose of the clause to reserve to the states an exclusive authority in the field of speech and press." Id. at 235 (emphasis in original).

By 1966 the uncertainties had vanished, and Levy was willing to state flatly that the Framers' intention was to deprive Congress of all power over the press and reserve that field exclusively to the states. See Introduction, FREEDOM OF THE PRESS, supra note 241, at lv-lix. I have relied primarily upon the 1966 essay as the most mature statement of Levy's position, with supplementary references to the 1960 book.

n254. "That the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated." 2 B. SCHWARTZ, supra note 47, at 842.

n255. Introduction, FREEDOM OF THE PRESS, supra note 241, at lvi-lvii. See infra notes 263-287 and accompanying text.

n256. Id. at lix. See infra notes 288-301 and accompanying text.

n257. See supra text accompanying note 159.

n258. "[N]o fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." U.S. CONST. amend. VII.

n259. See SENATE JOURNAL, supra note 126, at 77.

n260. L. LEVY, supra note 38, at 224.

n261. See infra text accompanying notes 380-441.

n262. See supra text accompanying notes 159, 257.

n263. Introduction, FREEDOM OF THE PRESS, supra note 241, at lvi.

n264. See supra text accompanying note 137. Madison's introduction of a specific separate amendment regarding the states shows that he did not believe his general amendment prohibited state abridgements. But that does not suggest that he viewed the general amendment as protecting state abridgements.

n265. See 1 ANNALS, supra note 126, at 796.

n266. See supra notes 162-165 and accompanying text. See also 2 B. SCHWARTZ, supra note 47, at 1149.

The change cannot be explained as mere consolidation of the expression and religion clauses. The religion clauses came from the House in the "Congress shall make no law" form. The Senate changed the expression amendment to that form on September 3, 1789, but did not consolidate the two until September 9. See id. at 1148, 1153.

n267. This is obvious from his introduction of a separate amendment to limit the states. See supra text accompanying note 177.

n268. For example, when Madison introduced his amendments, he said their protection must be directed primarily against the legislative branch, "for it is the most powerful, and most likely to be abused, because it is under the least control." 2 B. SCHWARTZ, supra note 47, at 1029. The power of Congress was as highly valued by the Constitution's supporters as it was feared by its opponents. Thus, at the Massachusetts ratifying convention, James Bowdoin asserted that the great power of Congress was the most strongly urged objection to the Constitution, but that in fact it was "a most cogent reason for accepting the Constitution. The power of Congress, both in the legislative and executive line, is the power of the people . . . . If you diminish or annihilate it, you diminish or annihilate the means of your own safety and prosperity." Id. at 684.

n269. See L. LEVY, supra note 38, at 183-86.

n270. Introduction, FREEDOM OF THE PRESS, supra note 241, at lv (footnote omitted).

n271. 2 B. SCHWARTZ, supra note 47, at 839. The ratification form was drafted by a different committee from the one that drafted proposed amendments. See id. at 838.

n272. Id. at 842.

n273. See supra text accompanying note 137.

n274. See 1 ANNALS, supra note 126, at 453-59.

n275. See supra text accompanying note 177.

n276. L. LEVY, supra note 38, at 238.

n277. Id. at 238, 245.

n278. Introduction, FREEDOM OF THE PRESS, supra note 241, at lix. "There was unquestionably a federal common law of crimes at the time of the Sedition Act." Id.

n279. See L. LEVY, supra note 38, at 239-45; Introduction, FREEDOM OF THE PRESS, supra note 241, at lviii.

n280. "Justices Wilson, Paterson and Ellsworth, who accepted jurisdiction of common-law crimes, were among a select group of the most influential members of the Constitutional Convention of 1787, while Justices Jay and Iredell, who accepted similar jurisdiction, were major figures closely associated with the Framers." L. LEVY, supra note 38, at 245.

n281. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812).

n282. James Wilson, Speech of December 1, 1787, at the Pennsylvania Ratifying Convention, in J. MCMASTER & F. STONE, supra note 82, at 309 [hereinafter cited as Wilson].

n283. See L. LEVY, supra note 38, at 238. Levy first interpreted Wilson's comment as an assertion that libels against the United States could be prosecuted only in state courts. Id. That interpretation was challenged in Cound, supra note 240, at 257, and Levy acknowledged his error in Levy, supra note 241, at 29 n.30, where he interpreted Wilson's statement to mean that "while Congress could enact no law against the press, a libel against the United States might be prosecuted in the state where the offense was committed, under Article III, Section 2, of the Constitution which refers to the judicial power of the United States." Id. at 29. He asserted that "[t]he corrected reading of Wilson's statement strengthens the thesis of the book." Id. at 29 n.30.

n284. Wilson, supra note 282, at 309 (emphasis added).

n285. Wilson said "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." Id. at 308. Levy relies heavily on this statement as evidence of the intended meaning of the first amendment, describing Wilson as an influential Framer and the only one to express himself on the meaning of freedom of the press. See L. LEVY, supra note 38, at 201-02; Introduction, FREEDOM OF THE PRESS, supra note 241, at lii. It is not at all clear that Wilson is a reliable spokesman for those who framed the first amendment. Although he was an influential member of the Constitutional Convention, he was not a member of the First Congress and had no hand in the drafting of the first amendment. We do not know whether Madison shared Wilson's views of press freedom, but we do know that by 1788 Madison disagreed with Wilson's general view that the federal government had no power to infringe individual rights. See Letter from Madison to Jefferson (Oct. 17, 1788), in 1 B. SCHWARTZ, supra note 47, at 614-15.

Most important, when Wilson had the opportunity to draft a press clause himself, for the Pennsylvania Constitution of 1790, he wrote one vastly different from that of the first amendment. Wilson's press clause explicitly stated the Blackstonian view: "The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty." It also adopted the Zengerian reforms relating to the jury's role and the defense of truth. See supra note 211. One might wonder why Wilson thought it necessary to spell out the Blackstonian view in such detail in 1790 if it was universally understood to be the meaning of the much simpler language used in the first amendment in 1789.

n286. Introduction, FREEDOM OF THE PRESS, supra note 241, at lix.

n287. Id. at lvii (emphasis in original).

n288. Id. at lvii-lxi. Cf. L. LEVY, supra note 38, at 233-36 (where Levy is less certain about the effect of the amendment on the courts and the state legislatures).

If Levy's reading is correct, then, of course, the Supreme Court has misread history by applying the first amendment to the federal courts, see, e.g., New York Times Co. v. United States, 403 U.S. 713 (1971), and by failing to recognize it as an absolute bar to congressional regulation, see, e.g., Associated Press v. United States, 326 U.S. 1 (1945).

His reading also implies that the Court gave history short shrift when it concluded that the freedoms of the first amendment were "among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." Gitlow v. New York, 268 U.S. 652, 666 (1925). If Congress specifically intended to preserve the states' exclusive authority over speech and press, as Levy contends, one might expect the Court to at least consider whether the generality of the due process clause was intended to reverse such a specific understanding; it has never done so.

n289. Introduction, FREEDOM OF THE PRESS, supra note 241, at lvii.

n290. Id. at lix.

n291. Id. at lix.

n292. Id. at lx. See also L. LEVY, supra note 38, at 262-65.

n293. Letter from Jefferson to Abigail Adams (Sept. 11, 1804), in W. BERNS, supra note 87, at 82.

n294. See 8 ANNALS, supra note 126, at 2139, 2152-54.

n295. In fact, Jefferson did rely on the tenth amendment, quoting it twice in the Kentucky Resolutions of 1798. See FREEDOM OF THE PRESS FROM ZENGER TO JEFFERSON 351 (L. Levy ed. 1966) [hereinafter cited as FREEDOM OF THE PRESS]. Levy cites these resolutions for the proposition that Jefferson believed the first amendment reserved state power over the press. See id. at lx.

n296. See supra text accompanying notes 53-70.

n297. See Van Alstyne, supra note 35, at 769 n.16; Lewis, supra note 34, at 599.

n298. See supra text accompanying notes 49-52.

n299. See supra notes 53-68 and accompanying text.

n300. See supra note 2 and accompanying text.

n301. Chief Justice Burger rejects the oral-written dichotomy of speech and press on textual and historical grounds. Madison's proposed amendment, he notes, protected both the freedom to write and publish one's sentiments, and the freedom of the press. Consolidation of the rights to write and publish into the phrase "freedom of speech" was merely stylistic, he assumes, and therefore does not negate the implication that the right to express oneself in writing was something independent from freedom of the press. Burger also rejects the hypothesis that the speech clause protects the individual's right to disseminate those ideas broadly. Nevertheless, he contends the press clause is not necessarily a redundancy; the press "merited special mention simply because it had been more often the object of official restraints." First Nat'l Bank v. Bellotti, 435 U.S. 765, 800 (1978); see generally id. at 798-801. Though this might explain the press clause historically, it does not save it from legal redundancy.

n302. See Introduction, FREEDOM OF THE PRESS, supra note 241, at lvi.

n303. See, e.g., L. LEVY, supra note 38, at 28-29, 70, 73, 75.

n304. Id. at 182, 237.

n305. Nelson, Seditious Libel in Colonial America, 3 AM. J. LEGAL HIST. 160, 170 (1959).

n306. Id. (emphasis deleted).

n307. Id. at 165-70. The successful prosecution was that of John Checkley, whom the Massachusetts council charged in 1724 with writing "sundry vile insinuations against His Majesty's rightful and lawful authority." The Superior Court of Judicature convicted Checkley despite his lawyer's claim that the jury should have been allowed to decide whether the words were libelous. Id.

n308. Id. at 165-70. Nelson did leave open the possibility that more cases might be found in the records of the colonial courts. Id. at 171. Levy surmised, apparently independently of Nelson, that "[a]ltogether, there were probably not more than half a dozen prosecutions for seditious libel in the whole of the American colonial period." Introduction, FREEDOM OF THE PRESS, supra note 241, at xxxiv.

The impotence of seditious libel was not lost on the Framers. As Madison said in 1789:

In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing the freedom of the press has stood; on this foundation it yet stands . . . .

Madison's Report on the Virginia Resolutions, in IV DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 570 (J. Elliot ed. 1836) (facsimile reprint 1941) [hereinafter cited as ELLIOTT'S DEBATES].

n309. L. LEVY, supra note 38, at 28-29.

n310. See L. RUTHERFORD, JOHN PETER ZENGER 124-25 (1904).

n311. L. LEVY, supra note 38, at 75.

n312. Id. at 72-73.

n313. Id. at 67-70.

n314. Teeter, Decent Animadversions: Notes Toward a History of Free Press Theory, in NEWSLETTERS TO NEWSPAPERS: EIGHTEENTH-CENTURY JOURNALISM 237, 242 (D. Bond & W. McLeod eds. 1977).

n315. Introduction, FREEDOM OF THE PRESS, supra note 241, at xxiv-xxxv.

n316. See L. LEVY, supra note 38, at 16.

n317. The most common sanction was humiliation: the accused was forced to beg pardon, usually on his knees, and to pay costs. Sometimes the suspects were also fined and/or imprisoned until they agreed to apologize or until they agreed to answer the assembly's questions. See M. CLARKE, PARLIAMENTARY PRIVILEGE IN THE AMERICAN COLONIES 104-05 (1943).

n318. See L. LEVY, supra note 38, at 39-41. In South Carolina, the Council attempted to punish Thomas Powell for unlicensed publication of a digest of the Council's proceedings, but members of the Assembly, sitting as judges, discharged him, and the Assembly challenged the Council's authority to punish for breach of parliamentary privilege. Id. at 76-78.

n319. See id.

n320. See supra note 203.

n321. See L. LEVY, supra note 38, at 78-85.

n322. Id. at 72-73.

n323. See, e.g, id. at 131.

n324. Indeed, during the Sedition Act debates, John Nicholas asserted that the State Constitutions had made the law of libels "a dead letter." He indicated that he knew of no use of the law to punish seditious libels against magistrates since the Revolution. Minority Report of the House Select Comm. on Repeal of the Sedition Act, Feb. 25, 1799, 9 ANNALS 3002-14 (1799), reprinted in FREEDOM OF THE PRESS, supra note 295, at 184.

n325. Anastaplo, supra note 96, at 738.

n326. Jensen, supra note 240, at 457.

n327. D. Teeter, supra note 242.

n328. Id. at 213-14.

n329. Id. at 215.

n330. Id. at 226.

n331. Id. at 224.

n332. Id. at 232.

n333. Id. at 237.

n334. Id. at 234.

n335. Id. at 235.

n336. Id. at 216, 220.

n337. McKean charged Oswald with libel in another episode in 1782, but the grand jury refused to indict and when McKean persisted, the grand jury issued a memorial criticizing McKean, which Oswald gleefully published. Id. at 229-32. Eventually Oswald was indicted -- though not convicted -- for another libel, and, in 1788, McKean finally succeeded in jailing him for one month and fining him £ 10 for contempt. See Respublica v. Oswald, 1 U.S. (1 Dall.) 319 (Pa. 1788). Oswald was cheered by his supporters as he went off to jail, and from his cell he continued his attacks on McKean. D. Teeter, supra note 242, at 237.

n338. Later common law prosecutions for seditious libel also produced few convictions. The Federalists attempted three common law prosecutions in 1798-99, two in the federal courts and one in a state court. One defendant, Benjamin Franklin Bache, editor of the influential Philadelphia Aurora, died before trial. See J. SMITH, supra note 236, at 200-04. Another, John Daly Burk, editor of the New York Time Piece, avoided conviction by agreeing to leave the country, an agreement he did not keep. See id. at 211-20. The third, David Frothingham, foreman of the New York Argus, was convicted in the state court of New York and was fined $ 100 and sentended to four months in jail. See id. at 403-14.

After the Jeffersonians took power, they obtained common law sedition indictments against Federalist editors Harry Croswell in New York and Joseph Dennie in Philadelphia and against six Federalist defendants in Connecticut. Croswell was convicted; Dennie was acquitted; four of the Connecticut prosecutions were dropped; and the remaining two failed when the Supreme Court ruled that federal courts had no jurisdiction over common law crimes. See L. LEVY, supra note 38, at 297-306. The Supreme Court decision was United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812).

n339. See Anastaplo, supra note 96, at 738.

n340. Madison, The Virginia Report of 1799-1800, in FREEDOM OF THE PRESS, supra note 295, at 214 [hereinafter cited as Virginia Report]. See also supra text accompanying note 306. For an extended discussion of the inconsistency between the English common law of seditious libel and the American theory of popular government, see J. SMITH, supra note 236, at 420-30.

n341. Ch. 74, 1 Stat. 596-97. The Act is reproduced in full in J. SMITH, supra note 236, at 441-42. The full title of the statute is "An Act in addition to the act, entitled 'An act for the punishment of certain crimes against the United States.'" Id. at 441. From 1798 until the present, however, it has been called simply "the Sedition Act."

n342. J. SMITH, supra note 236, at 442. It was also unlawful "to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States . . . or to resist, oppose, or defeat any such law." Id.

n343. J. MILLER, THE FEDERALIST ERA 235 (1963). Smith counted at least 14 Sedition Act indictments and described each of them at length. See J. SMITH, supra note 236, at 176-87. Smith also found newspaper reports of additional arrests. Id. at 185-86. Miller does not give a source for his count.

n344. J. MILLER, supra note 343, at 235; J. SMITH, supra note 236, at 186-87.

n345. The Republican newspapers already were greatly outnumbered by their Federalist rivals. One estimate is that of 101 newspapers, only 12 were Republican. See Robert Allen Rutland, Newspaper Opposition to the Constitution, 1787-88, at 2 (Address to the Association for Education in Journalism, Eugene, Or., Aug. 27, 1959) (copy on file at UCLA Law Review). Moreover, the papers that were prosecuted -- The Philadelphia Aurora, Boston Independent Chronicle, New York Argus, Richmond Examiner, and Baltimore Examiner -- were those from which most of the lesser Republican papers copied their political material. Silencing them would have effectively cut off press criticism at its sources.

n346. Stewart, supra note 20, at 634.

n347. Levy, it should be noted, does not rely on this argument. He argues merely that Republican assertions that the Sedition Act was inconsistent with the original understanding are entitled to no more weight than the Federalists' assertions that it was consistent. See L. LEVY, supra note 38, at 246-47.

n348. B. BAILYN, D. DAVIS, D. DONALD, J. THOMAS, R. WIEBE & G. WOOD, THE GREAT REPUBLIC 341 (1977). See generally J. SMITH, supra note 236, at 3-34, 63-93.

n349. See BIOGRAPHICAL DIRECTORY OF THE AMERICAN CONGRESS 1774-1961 (1961). Membership of the First Congress is listed at 49-50, and the Fifth Congress at 58-60. The Senate's vote on the Sedition Act is recorded in 7 ANNALS 599 (1798) (J. Gales & W. Seaton 1851), and the House's vote in 8 ANNALS 2171 (1798) (J. Gales & W. Seaton 1851). Members of the First Congress who voted for the Sedition Act in the Fifth Congress were Senators Foster of Rhode Island, Goodhue and Sedgwick of Massachusetts, Laurance of New York, and Livermore of New Hampshire, and Representatives Foster of New Hampshire, Hartley of Pennsylvania, Schureman and Sinnickson of New Jersey, and Thatcher of Massachusetts. Voting against it were Senators Langdon of New Hampshire and Brown of Kentucky (who represented a Virginia district in the First Congress) and Representatives Baldwin of Georgia and Sumter of South Carolina. The other four members of the First Congress who were also members of the Fifth Congress did not vote on the Sedition Act. They were Senators Gunn of Georgia and Bloodworth of North Carolina and Representatives Giles and Parker of Virginia.

Four of those who were members of the Fifth Congress when the Sedition Act was passed had attended the Constitutional Convention. They were Senator Langdon of New Hampshire and Representative Baldwin of Georgia, who voted against the Sedition Act, Senator Martin of North Carolina who voted for it, and Representative Dayton of New Jersey, who did not vote. See 3 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 587-90 (M. Farrand ed. 1966).

n350. J. SMITH, supra note 236, at 152.

n351. Id. at 153-54.

n352. Id. at 151. Marshall was not a member of Congress when the Alien and Sedition Acts were passed, but in his campaign platform in 1798 he said he would have voted against them had he been in Congress. He condemned them as "useless" and "calculated to create unnecessary discontents and jealousies," for which he was censured by the New England Federalists as a disloyal "half-Federalist." Fisher Ames called "moderates" like Marshall "the meanest of cowards, the falsest of hypocrites." It was Marshall, however, who drafted the Federalist reply to the Virginia resolution against the Alien and Sedition Acts. In that reply, Marshall defended the constitutionality of the Acts. Id.

n353. The exception was James Sullivan, leader of the Democratic-Republican party in Massachusetts. He later wrote a tract attempting to reconcile freedom of the press and seditious libel. See L. LEVY, supra note 38, at 289-93.

n354. J. SMITH, supra note 236, at 177. Although all of those prosecuted were opponents of the Federalists, two or three were politically insignificant. One was an inebriated tavern patron who, upon being told that the cannons he was hearing were in honor of President Adams' passage through town, remarked "that he did not care if they fired thro' his ass." He was indicted, jailed, and fined $ 150. See J. SMITH, supra note 236, at 270-71.

n355. J. MILLER, supra note 343, at 99-100.

n356. Washington, for example, said in 1790, "If we mean to support the Liberty and Independence which it has cost us so much blood and treasure to establish, we must drive far away the daemon of party spirit and local reproach." XXXI THE WRITINGS OF GEORGE WASHINGTON 48 (J. Fitzpatrick ed. 1944), cited in J. MILLER, supra note 343, at 99.

n357. J. MILLER, supra note 343, at 84-125.

n358. Id. at 99-100.

n359. Id. at 108-24.

n360. Id. at 101-05.

n361. Id. at 102.

n362. See id. at 229-32 (listing Harper, Lloyd, and Otis).

n363. Smith calls Harper, Otis, and Allen "extremists." See J. SMITH, supra note 236, at 99.

n364. See J. MILLER, supra note 343, at 108-15.

n365. Id.

n366. As a Federalist newspaper expressed it, "The delusions of democracy, like other delusions of the human mind, cannot be resisted by reason and truth alone . . . . Reason will not answer -- reason will not protect your houses, ships and stables from thieves. You must have for protection the controlling fear of God and fear of Government." Impartial Herald, Suffolk, Conn., May 21, 1799, in J. MILLER, supra note 343, at 111 (emphasis in original).

n367. "In their efforts to turn the Washington and Adams administrations out of office, Republican journalists had freely used lies, canards, and misrepresentations; nothing was too scurrilous to serve as grist for their propaganda mills." President Washington had been called "the scourge and the misfortune of our country," whose name gave "a currency to political iniquity and to legalized corruption." It was asserted that during the War of Independence he had been a secret traitor. President Adams appeared in Republican newspapers as "the blind, bald, toothless, querulous ADAMS," "the blasted tyrant of America," "a ruffian deserving of the curses of mankind," and "foremost in whatever is detestable." J. MILLER, supra note 343, at 233 (quoting from the Gazette of the United States and the Columbian Centinel, among other sources).

n368. See 1 ANNALS, supra note 126, at 454-55.

n369. J. SMITH, supra note 236, at 176.

n370. Id. at 186-87.

n371. J. MILLER, supra note 343, at 234. Because the Federalists controlled the enforcement machinery, Jefferson's critics probably would not have been prosecuted. But there was always the danger that a maverick grand jury might turn the Federalists' weapon against them.

n372. Although an able historian could say as late as 1960 that "the authority of the Federal government to punish seditious speech and writing is firmly established at the present time," J. MILLER, supra note 343, at 232, the Supreme Court has since made clear its belief that the Sedition Act was unconstitutional.

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.

New York Times Co. v. Sullivan, 376 U.S. 254, 276 (1964) (citations omitted).

n373. $ 2,000 fine and two years' imprisonment.

n374. See supra text accompanying note 75.

n375. See supra text accompanying note 81.

n376. See supra text accompanying notes 129-132.

n377. "The gentleman [Madison] endeavors to secure the liberty of the press; pray how is this in danger? There is no power given Congress to regulate this subject as they can commerce, or peace, or war." Representative Jackson of Georgia, arguing in the First Congress against spending time on the Bill of Rights. See 1 ANNALS, supra note 126, at 460.

n378. Introduction, FREEDOM OF THE PRESS, supra note 241, at lvi-lvii.

n379. See id. at lvii.

n380. L. LEVY, supra note 38, at 173-75.

n381. Id. at 68. Levy was referring to a restatement of the Blackstonian definition by Chief Justice Hutchinson of Massachusetts.

n382. Address to the Inhabitants of Quebec (1774), in 1 B. SCHWARTZ, supra note 47, at 221-27. See supra note 52.

n383. "[A]dvancement of truth, science, morality, and arts in general," "diffusion of liberal sentiments on the administration of Government," and "ready communication of thoughts between subjects and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honorable and just modes of conducting affairs." Id. at 223.

n384. Compare A. MEIKLEJOHN, supra note 46, with T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970). See also Blasi, supra note 29, at 523.

n385. See id. at 537-48.

n386. See supra text accompanying notes 214-226.

n387. 1 CATO'S LETTERS, supra note 214, at 96 (Essay No. 15, Of Freedom of Speech: That the same is inseparable from Publick Liberty, Feb. 4, 1720).

n388. 1 B. SCHWARTZ, supra note 47, at 378.

n389. See 1 CATO'S LETTERS, supra note 214, at 97 (Essay No. 15, Of Freedom of Speech: That the same is inseparable from Publick Liberty, Feb. 4, 1720).

n390. See supra text accompanying note 49.

n391. There are some Truths not fit to be told; where, for Example, the Discovery of a small Fault may do great Mischief; or where the Discovery of a great Fault can do no Good, there ought to be no Discovery at all: And to make Faults where there are none is still worse.

1 CATO'S LETTERS, supra note 214, at 246 (Essay No. 32, Reflections Upon Libelling, June 10, 1721).

n392. Id. at 247.

n393. There are so many Equivoques in Language, so many Sneers in Expression, which naturally carry one Meaning, and yet may intend another, that it is impossible by any fixed and stated Rules to determine the Intention, and punish all who deserve to be punished. But to get rid of this Inconvenience at the Expense of giving any Man, or Number of Men, a discretionary Power to judge another's Intentions to be criminal, when his words do not plainly denote them to be so, is subverting all Liberty, and subjecting all Men to the Caprices, to the arbitrary and wild Will, of those in Power.

3 CATO'S LETTERS, supra note 214, at 301 (Essay No. 101, Second Discourse upon Libels, Nov. 3, 1722).

n394. Id. at 303-04.

n395. L. LEVY, supra note 38, at 125. Levy's treatment of Cato is perplexing. Although he acknowledges that Cato's Letters were the intellectual source for the colonists' ideas on freedom of the press, Introduction, FREEDOM OF THE PRESS, supra note 241, at xxviii, he seems to deprecate the influence of the essays because they were expressions of English, rather than American, thought, see, e.g., L. LEVY, supra note 38, at 126; Introduction, FREEDOM OF THE PRESS, supra note 241, at xxvi-xxix. At the same time, he admits that Cato was adored, quoted, and plagiarized in the American colonies. Id. at xxvi. Levy implies that Cato approved of libel prosecutions under some circumstances, yet he recognizes that Cato's approval of good libel laws "prudently and honestly executed" was merely a "genuflection toward the law -- keeping Cato on its safe side." L. LEVY, supra note 38, at 119.

n396. Id. at 68.

n397. The relevant essays are: Of Freedom of Speech: That the same is inseparable from Publick Liberty (No. 15); Reflections upon Libelling (No. 23); Discourse upon Libels (No. 100); and Second Discourse upon Libels (No. 101). See CATO'S LETTERS, supra note 214.

n398. 1 CATO'S LETTERS, supra note 214, at 252 (Essay No. 32, Reflections Upon Libelling, June 10, 1721).

n399. If Men be suffered to preach or reason publickly upon certain Subjects, as for Instance, upon Philosophy, Religion, or Government, they may reason wrongly, irreligiously, or seditiously, and sometimes will do so; and by such Means may possibly now and then pervert and mislead an ignorant and unwary Person; and if they be suffered to write their Thoughts, the Mischief may be still more diffusive; but if they be not permitted, by any or all these Ways, to communicate their Opinions or Improvements to one another, the World must soon be over-run with Barbarism, Superstition, Injustice, Tyranny, and the most stupid Ignorance.

On the other Side, what Mischief is done by Libels to balance all these Evils? They seldom or never annoy an innocent Man, or promote any considerable Error. Wise and honest Men laugh at them, and despise them, and such Arrows always fly over their Heads, or fall at their Feet.

3 CATO'S LETTERS, supra note 214, at 296-98 (Discourse upon Libels (Essay No. 100), Oct. 27, 1722).

n400. 3 CATO'S LETTERS, supra note 214, at 305 (Second Discourse upon Libels (Essay No. 101), Nov. 3, 1722).

The subjecting the Press to the Regulation and Inspection of any Man whatsoever, can only hinder the Publication of such Books, as Authors are willing to own, and are ready to defend; but can never restrain such as they apprehend to be criminal, which always come out by stealth. . . . And dangerous and forbidden Libels are more effectually dispersed, enquired after, and do more Mischief, than Libels openly published; which generally raise Indignation against the Author and his Party.

Id. at 305-06.

n401. L. LEVY, supra note 38, at 121.

n402. See supra text accompanying note 216.

n403. Introduction, FREEDOM OF THE PRESS, supra note 241, at lvi.

n404. L. LEVY, supra note 38, at 120.

n405. Teeter, supra note 314, at 241-42.

n406. Freeman's Journal, or the North American Intelligencer, Apr. 25, 1781, in Teeter, supra note 314, at 241.

n407. Independent Gazetter, or the Chronical of Freedom, Apr. 13, 1782, in Teeter, supra note 314, at 241-42.

n408. Id. at 242.

n409. Letter from Eleazer Oswald to John Lamb (Nov. 26, 1782) (Lamb Papers, Box IV, New York Historical Society), in Teeter, The Printer and the Chief Justice: Seditious Libel in 1782-83, 45 JOURNALISM Q. 235, 239 (1968). Oswald was an influential opponent of the Constitution during the ratification period. He apparently went to Richmond during the Virginia ratifying convention and delivered to Patrick Henry news and advice from the Pennsylvania Anti-Federalists. See R. RUTLAND, supra note 71, at 169.

n410. Oswald's address was reprinted, apparently in full, in the report of his case, Respublica v. Oswald, 1 U.S. (1 Dall.) 319, 319-31 (Pa. 1788), reprinted in FREEDOM OF THE PRESS, supra note 295, at 132-42. Oswald's condemnation of seditious libel appears in id. at 134.

n411. Introduction, FREEDOM OF THE PRESS, supra note 241, at lvi n.97.

n412. "Pretty high Notions of the Liberty of the Press, I am sensible, have prevailed of late among us . . . ." See L. LEVY, supra note 38, at 67.

n413. Letter from William Cushing to John Adams (Feb. 18, 1789), in FREEDOM OF THE PRESS, supra note 295, at 147, 150.

n414. Id. at 150 (emphasis in original). Cushing believed that "fear of jails, scourges and loss of ears . . . will be as effectual a restraint as any previous restraint whatever." Id. (emphasis in original). His question to Adams was whether freedom of the press did not necessarily include "a free scanning of the conduct of administration." Id. He signaled the answer he wanted:

Without this liberty of the press could we have supported our liberties against british administration? or could our revolution have taken place? . . . This liberty of publishing truth can never effectually injure a good government, or honest administrators; but it may save a state from the necessity of a revolution, as well as bring one about, when it is necessary.

Id. at 151.

Adams gave Cushing the answer he sought, albeit without great enthusiasm. Our chief magistrates and Senators . . . are annually eligible by the people. How are their characters and conduct to be known to their constituents but by the press? . . . I therefore, am very clear that under the Articles of our Constitution which you have quoted, it would be safest to admit evidence to the jury of the Truth of accusations, and if the jury found them true and that they were published for the Public good, they would readily acquit.

Id. at 153.

Levy views this exchange as "an almost pathetic reflection of the stunted character of American libertarian thought" because it shows that as late as 1789, Cushing and Adams "worried whether the common law should not be modified by adoption of Zengerian principles." See L. LEVY, supra note 38, at 193-96. But Levy is wrong. They were not asking whether the common law should be modified, but whether a constitutional guarantee of freedom of the press required such a modification. Their answer was not only that it did, but that the American form of government required a different view of freedom of the press than prevailed in Great Britain.

Levy correctly notes that Cushing and Adams were arguing for only a minor (and generally ineffectual) modification of Blackstonian principles, namely, recognition of truth as a defense, and that both of them later supported the Sedition Act. Id. at 196-98. Neither of those facts, however, detracts from their recognition that the Blackstonian view of freedom of the press was inadequate.

n415. See supra note 340.

n416. Virginia Report, supra note 340, at 213.

n417. Id.

n418. Id. at 214.

n419. Id. at 215.

n420. Id. at 222.

n421. L. LEVY, supra note 38, at 273-82.

n422. Id. at 282.

n423. Id. at 279. See also Introduction, FREEDOM OF THE PRESS, supra note 241, at liv.

n424. See 3 ELLIOT'S DEBATES, supra note 308, at 246-47.

n425. Id. at 248.

n426. Id. at 328.

n427. Nicholas said:

The liberty of the press is secured. What secures it in England? Is it secured by Magna Charta, the Declaration of Rights, or by any other express provision? It is not. They have no express security for the liberty of the press. They have a reliance on Parliament for its protection and security. In the time of King William, there passed an act for licensing the press. That was repealed. Since that time, it has been looked upon as safe. The people have depended on their representatives. They will not consent to pass an act to infringe it, because such an act would irritate the nation. It is equally secure with us.

Id. at 246-57.

n428. Letter from Madison to Jefferson (Oct. 17, 1788), in 1 B. SCHWARTZ, supra note 47, at 614-18. The relevant passage is:

My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor have been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and if properly executed could not be of disservice.

Id. at 615. Madison's statement that he had always favored a bill of rights must be read in context with the rest of the passage and in light of the fact that only ten months earlier he had opposed a bill of rights as unnecessary. See supra text accompanying note 127.

n429. Letter from Madison to George Eve (Jan. 2, 1789), in 2 B. SCHWARTZ, supra note 47, at 996-97. Eve was a supporter of Madison in his campaign against Monroe for Congress, and it appears that Madison intended Eve to make the letter public to refute reports that Madison was opposed to any amendments. See R. KETCHAM, supra note 128, at 276; R. RUTLAND, supra note 71, at 195-96.

n430. Levy also sees significance, Introduction, FREEDOM OF THE PRESS, supra note 241, at liv-lv, in Madison's silence when John Marshall asked rhetorically, "Is it presumable that [Congress] will make a law to punish men who are of different opinions in politics from themselves? Is it presumable that they will do it in one single case, unless it be such a case as must satisfy the people at large?" 3 ELLIOTT'S DEBATES, supra note 308, at 560. This comment, also part of a long speech that touched on many other matters, is even less conspicuous than Nicholas', and Madison's silence is meaningless for the same reasons.

n431. Virginia Report, supra note 340, at 217.

n432. L. LEVY, supra note 38, at 278.

n433. see Blasi, supra note 29, at 535-36 n.60.

n434. Virginia Report, supra note 340, at 213.

n435. Id. at 214.

n436. Id.

n437. See 1 ANNALS, supra note 126, at 453.

n438. Id.

n439. Id. at 454.

n440. Id at 454-55.

n441. Id. at 455.

n442. See supra notes 214, 216-226 and accompanying text.

n443. See supra note 223 and accompanying text.

n444. Blasi, supra note 29, at 538.

n445. Stewart, supra note 20, at 633 (emphasis in original).

n446. Levy never explains why Madison, in 1799, would misstate his own views of 1789. He says he does not doubt Madison's consistency or sincerity, but "sincerity is no test of prior intention." L. LEVY, supra note 38, at 247.

n447. See 2 H. SCHOFIELD, ESSAYS ON CONSTITUTIONAL LAW AND EQUITY 521-22 (1921).

n448. See Z. CHAFEE, supra note 238, at 21.

n449. See J. SMITH, supra note 236, at 428-49.

n450. See T. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 613-15 (7th ed. 1903).

n451. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

n452. See Beauharnais v. Illinois, 343 U.S. 250, 272 (1952) (Black & Douglas, JJ., dissenting); Bridges v. California, 314 U.S. 252, 264 (1941) (Black, J.).

n453. Beauharnais v. Illinois, 343 U.S. 250, 289 (1951) (Jackson, J., dissenting).

n454. See New York Times Co. v. Sullivan, 376 U.S. 254, 265-66 (1964).

n455. See L. LEVY, supra note 38, at 18-19.

n456. Id. at 87.

n457. Indeed, as Levy concedes, "neither in America nor in England did the common law actually prevent widespread discussion of affairs of state by the common people." Id. at x.

n458. See id. at 176-82.

n459. Id. at 297-307.

n460. "In these matters, the sentiments of men are more important than their actions: for sentiments reflect principle, whereas actions are all too often the unfortunate products of passion." Anastaplo, supra note 96, at 739 (footnote omitted).

n461. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 718-19 (1971) (the government's request for an injunction was denied as an unjustified infringement on freedom of the press); United States v. Progressive, Inc., 467 F. Supp. 990, 1000 (W.D. Wis. 1979) (the government's request for an injunction was granted), appeal dismissed, 610 F.2d 819 (7th Cir. 1979).

n462. See, e.g., FCC v. Pacifica Found., 438 U.S. 726 (1978); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). See generally Powe, "Or of the [Broadcast] Press," 55 TEX. L. REV. 39 (1976) (discussing broadcast regulation and arguing that broadcasting should be protected to the same extent as is the print media).

n463. See Lamont v. Postmaster Gen., 381 U.S. 301 (1965) (holding unconstitutional a section of the Postal Service and Federal Employees Salary Act of 1962 that restricted delivery of purported foreign communist political propaganda).