Press Freedom in Early America and Interpretation of the First Amendment

by Kenneth Shear (more about this book and author)

Preface and Forewords

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Author’s Preface

Foreword by Richard Buel, Jr.

Foreword by Alfred W. Blumrosen

Dedication / Acknowledgments

 

Author’s Preface

When the First Amendment was adopted, did Americans understand it would protect against the government punishing people for writings deemed dangerous or harmful?  Despite the broad guarantee of press freedom, several legal historians have expressed doubt that the “original understanding” was to protect people against being prosecuted for what they published.  The primary purpose of this monograph is to review the extensive evidence, overlooked in earlier scholarship, that Americans in the early republic had very libertarian views of press freedom under the Bill of Rights.

This question is not just academic.  Supreme Court Justice Antonin Scalia has attacked the decision in New York Times v. Sullivan, a leading case protecting the press, on grounds that the case goes beyond what Scalia deems to be the “original meaning” of the First Amendment.  This monograph presents substantial historical evidence contrary to Scalia’s view.  The conclusion of this monograph further discusses Justice Scalia’s recent comments about First Amendment history.

This paper is broken down by several historical periods, which are listed in the table of contents.  It includes a running critique of the work of Leonard Levy, currently regarded by many as the leading scholar of early American First Amendment history.  Levy’s contribution to this area was enormous, but the gaps in his version of early American history were also very large.   The flaws in Levy’s work should caution against believing that we have reached a thorough understanding of developments like the emergence of press freedom in America.

Finally, this monograph attempts to show how vain a proposition it is for judges to declare from the bench what the “original meaning” of press freedom was several hundred years ago.  The Constitution is not a historic relic.  It was and is the structural foundation of our government, and part of that structure demands that the judicial branch interpret and enforce fundamental law.  History can reveal the sources of our present system and can teach us much about how that system works.  Historical evidence certainly should be considered in deciding the meaning, today, of the free press guarantee. But nowhere does the Constitution or the Bill of Rights say that the meaning of their words must remain fixed as of the point in time they were adopted.  Press freedom is a precious right that we inherited. Our responsibility is to preserve and pass it on to those who come after us, fulfilling the letter of the Bill of Rights and its spirit as a charter of liberty.

 

Foreword by Richard Buel, Jr.

It is no accident that the Bill of Rights begins with the declaration that Congress shall make no laws abridging the freedom of the press or the freedom of religion. The first amendment to the United States Constitution affirms the most essential of all the freedoms at the heart of our system of government. Without it not only would the state be authorized to invade the domain of individual conscience, but a government responsible to the people would be all but impossible. Yet the precise meaning of the First Amendment has been the subject of ongoing controversy almost since its adoption. Within a decade of its ratification Congress passed a Sedition Act giving the Federal courts jurisdiction over seditious libels. To protests from the Republican opposition that Sedition Law of 1798 violated the First Amendment, its sponsors replied that the provisions in the statute for pleading truth as a defense and allowing juries to decide whether the libel was true or false expanded rather than abridged the freedom of the press. It did so by liberalizing the common law of seditious libel, where truth was not a defense and juries only decided whether the accused had published the words that were being prosecuted.

Kenneth Shear’s “Unoriginal Misunderstandings” is the latest addition to an argument that has been going on for more than two centuries. The controversy has recently been given new life because several justices on the nation’s highest court have invoked the “original meaning” of the framers as the standard by which they propose to interpret the document. And the opinions of one of those justices suggests that his view of the “original meaning” of the First Amendment would authorize the government to place severe restraints on the freedom of the press. Shear’s essay mobilizes evidence to challenge such a restrictive view and in the process underscores the difficulty that one inevitably encounters in ascertaining the intentions of men who do not agree among themselves. But that does not lead Shear to conclude that an exploration of the past is either futile or irrelevant. Instead his “Unoriginal Misunderstandings” affirms the importance of properly understanding the historical context in which the Constitution and Bill of Rights were framed, however complex and confused it might be. As he wisely observes “We did not invent rights such as freedom of the press or our constitutional form of government. We inherited them. To unmoor our ideas of press freedom from their historical origins and past development would break the traditions that are the historical foundation on which our democracy stands. History connects us to the sources of rights like freedom of the press and enables us to understand when constitutional guarantees have been upheld, betrayed, exceeded or defended.”(2)

Shear’s essay takes the form of an extended rebuttal of Leonard Levy’s scholarly oeuvre. Though personally libertarian in his commitments, Levy’s research led him to conclude that the framers did not share his own expansive notions about the freedom of expression. Levy highlighted those occasions on which public authorities affirmed their power to punish words they construed as injurious to the state. Shear counters Levy’s view by arguing that Americans rejected the common law of seditious libel after the Zenger trial of 1740. The evidence for this claim is twofold: the vast majority of those who spoke out about the issue adopted expansive notions about the freedom of expression at least until the Revolution; in addition, during this thirty-five-year interval there were no successful prosecutions for seditious libel. Some may feel that Shear attributes too much significance to abstract affirmations and not enough to the structural difficulties confronting those who sought to control the press in colonial America. And not everyone will be convinced by what happened during the Revolutionary and early Republican periods that the founding generation’s ideas were as liberal as Shear believes. Nonetheless, ever reader should come away impressed by the range of materials Shear has unearthed that support the notion that eighteenth-century Americans embraced expansive notions of freedom of the press. They should also applaud Shear’s insight that ideas about a free press were intimately linked to the value attached to the freedom of opinion in religious as well as civil matters.

The most important aspect of Shear’s essay, though, is the assault it mounts against judicial appeals to the original intentions of the founders. In his conclusion, Shear traces some of the ways in which he feels this standard has been abused in recent opinions handed down by the Court. If nothing else, Shear’s findings dramatize the difficulties involved in making generalizations about the framers’ intentions. It is not just that members of the founding generation entertained widely different views about the freedom of the press. The same individual could adopt very different notions at different times in his career depending on the circumstances he was confronting. Shear’s conclusion is designed to discourage future, one-sided appropriations from a complex past, which he feels was more liberal on balance than either Levy or certain members of the current Court credit it with having been.

 

Foreword by Alfred W. Blumrosen

Ken Shear has unclothed a central concept of constitutional interpretation proposed by Justice A. Scalia, or at least demonstrated that its premise may not exist.  Justice Scalia is the most prominent, persistent and elegant proponent of interpreting constitutional issues of our time by reference to the interpretations of the constitution at and around the time of its adoption and original interpretation by those who participated in or were otherwise related to the thinking at the time.   Scalia notes that this process may be difficult, and may not resolve every issue.   Shear suggests that it may not resolve any issues except perhaps where all the evidence that has been found points in one direction, and even then remains subject to either new evidence or new interpretations of existing evidence.

He demonstrates to anyone reading his manuscript that the laws concerning criticism of government had varied during the Pre revolutionary in Britain from a starting point of outright prohibition to its relaxation through various legal formulas prior and during the revolution and to jury nullification at the trial of John Peter Zenger in 1735 in Philadelphia.  Shear then arrays a formidable group  of writings by lawyers, ministers, and journalists during and after the revolution concerning press freedoms that the reader concludes that the “clear and present danger” doctrine of the twentieth century was anticipated by George Washington’s Attorney Generals.

The conclusion he leads us toward is that the solidity of the “original intent” concept flounders in the attempt at its application when it is examined in close detail.  The implication from his work is that “original intent” will ultimately retreat from the frontier of constitutional interpretation, to join the crowd of other approaches that accept original intent as but one of approach to interpretation of a document, some of whose founders intended it to last beyond the sweep of their broadest vision.

 

Dedication / Acknowledgments

Dedication: To my wife, Mary Bennett, whose encouragement, insight and patience sustain and inspire.

Acknowledgments: Edited by Alice Porter. Final copy edit by Molly Anders. I am grateful to Professors Richard Buel, Jr. and Alfred W. Blumrosen for providing forewords and for their encouragement and suggestions. Encouragement by Marilyn Endriss who also steered me to Lotus Agenda, a great tool for managing notes on sources. Tamara Fox assisted with research. Thanks to Readex / NewsBank for making essential source material available online.

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