Unoriginal Misunderstanding
Press Freedom in Early America and Interpretation of the First Amendment
Part 5: Adoption of the First Amendment Press Freedom Guarantee
87
Subsection Links:
5.2. Preamble to the Bill of Rights and Madison’s Speech Introducing His Proposals.
5.1 House Debate Over the Press Freedom Guarantee -- Representative Jackson Acknowledges that Punishment for Verbal Attacks on Officials Violates Press Freedom
Madison proposed a bill of rights, including a guarantee of liberty of the press, in the first session of the First Congress in 1789. The proposal for a guarantee of press freedom did not generate much debate, but there is one important speech that makes clear that the principle of press freedom under discussion was indeed broader than under common law. Representative James Jackson, a Georgian who opposed the bill of rights, asserted:
The gentleman [Madison] endeavors to secure the liberty of the press; pray how is this in danger? There is no power given to Congress to regulate this subject as they can commerce, or peace, or war. Has any transaction taken place to make us suppose such an amendment necessary? An honorable gentleman, a member of this House, has been attacked in the public newspapers on account of sentiments delivered on this floor. Have Congress taken any notice of it? Have they ordered the writer before them, even for a breach of privilege, although the Constitution provides that a member shall not be questioned in any place for any speech or debate in the House? No, these things are offered to the public view, and held up to the inspection of the world. These are principles which will always prevail. I am not afraid, nor are other members I believe, our conduct should meet the severest scrutiny. Where, then, is the necessity of taking
measures to secure what neither is nor can be in danger?[195]
Rep. Jackson’s speech on the floor of Congress denied the need for a press freedom guarantee to protect against punishment of writers for expressing opposition to the government. To illustrate his point, Rep. Jackson pointed out Congress had brought no breach of privilege proceedings although attacks had been published on a member of the house for his speeches. Breach of privilege proceedings may be unfamiliar to readers today, but were well known in eighteenth century America. As Levy explains, after Zenger’s case in 1735 put an end to seditious libel prosecutions in the American Colonies, “breach of privilege” proceedings were the main tool used by Colonial legislatures to punish political opposition.[196] With juries unwilling to indict or convict government critics for seditious libel, colonial assemblies had repeatedly taken the matter into their own hands and jailed critics for “breach of privilege” apparently meaning their privilege not to be criticized for official acts. When Rep. Jackson brought up breach of privilege proceedings based on publications attacking the legislature, he was talking about the most commonly used legal technique for punishing expressions of opposition to the government in America during the second half of the eighteenth century. It is not surprising in this context that Rep. Jackson did not mention the common law doctrine of seditious libel because it was breach of privilege proceedings, not criminal libel prosecutions, that had actually been used to punish expressions of opposition to the government in the decades leading up to American Independence, as discussed in part 1 above.
Jackson argued that no guarantee of the press was necessary, because people were free to verbally attack its members; Congress lacked power to punish them for breach of privilege and had not tried to do so. In other words, his argument was about a principle of press freedom that would protect against punishment based on
[195] Annals of Congress, 1789, p. 442-43, reprinted in The Founder’s Constitution vol.5, doc. 14.
[196] Emergence at 44-60.
publications verbally attacking the government. Jackson put no limitations at all on the right to oppose the government. He did not limit protected expression to what was true. While Jackson did not mention the doctrine of criminal libel or seditious libel by name, the premise of his speech was that punishing writers would violate freedom of the press. No one in the First Congress disputed Jackson on this point.
Representative Jackson’s speech is but one more piece of evidence of what press freedom under the First Amendment meant. It is not as if there were a debate in the First Congress over the scope of press freedom that was resolved one way or the other. Nor did Rep. Jackson attempt a full discussion of the history or legal doctrine of press freedom. His speech simply assumes that the principle of press freedom is broad enough to prohibit punishment based on publications that might be deemed objectionable by Congress. Since it is the only evidence available of what was meant by freedom of the press in the First Congress, it needs to be considered in any complete evaluation of the original understanding of the press freedom clause. Unfortunately, Rep. Jackson’s speech has been overlooked not only by Levy but by every other historian who has addressed this question. It should give pause to anyone who thinks that Levy’s work, or any other available historical account (including this one), actually addresses the pertinent evidence of what freedom of the press under the First Amendment originally meant.
5.2. Preamble to the Bill of Rights and Madison’s Speech Introducing His Proposals.
The Bill of Rights as passed by the First Congress included a preample:
THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence
in the Government, will best insure the beneficent ends of its institution[197]
Thus, Congress acknowledged that the purpose of the Bill of Rights was to address the recommendations of states, which had included guaranteeing a free press. The preamble mentions too that the purpose of the Bill of Rights included “extending the ground of public confidence in the Government.” This comment reflects the reasons given by Madison for the Bill of Rights when he introduced the initial version in the First Congress:
I appeal to those gentlemen who have heard the voice of their country, to those who have attended the debates of the State conventions, whether the amendments now proposed are not those most strenuously required by the opponents of the constitution? It was wished that some security should be given for those great and essential rights which they have been taught to believe were in danger....Have not the people been told that the rights of conscience, the freedom of speech, the liberty of the press, and trial by jury, were in jeopardy? That they ought not to adopt the constitution until these important rights were secured to them? [198]
As Madison explained, the reason for the Bill of Rights was to answer the claims of anti-Federalists that rights, including freedom of the press, were in danger. If we view the free press clause through the lens of the Bill of Rights preamble, it was intended to answer the fears of George Mason and other anti-Federalists that the federal government would deny press freedom.
In examining the original understanding of the First Amendment, Levy completely ignores the preamble to the Bill of Rights and Madison’s explanation that the Bill of Rights, including the press freedom clause, were meant to address the concerns of
[197] Senate Journal, September 1789, reproduced in 5 Schwartz, B., ed., The Roots of the Bill of Rights(1971) 1163, 1164
[198] Annals of Congress (1789) vol. 1 at 746, reprinted in Schwartz, B., ed., The Roots of the Bill of Rights (1971) vol. 5 at page 1104.
people who had opposed the constitution because of the lack of such guarantees. To Levy, it is unimportant that the Bill of Rights in general, and the press freedom clause in particular, was meant to address the concerns of anti-Federalists.[199] Indeed, in Levy’s version of history, when considering the original understanding of the meaning of press freedom under the First Amendment, great weight should be given the views of Wilson and other federalists who believed that a bill of rights and free press clause should not be added to the Constitution. That is a version of history that contradicts both Madison’s statement in introducing the Bill of Rights and also the preamble that ultimately became part of the Constitution. The ratification debates, as discussed above, provide much evidence that those who believed “liberty of the press…in jeopardy” did indeed consider seditious libel prosecutions to be one of the important threats. Rep. Jackson’s speech on the floor of the First Congress confirms that the concept of press freedom was broad enough to prohibit punishment of opposition to the government under the doctrine of legislative privilege, a common law counterpart to the common law of seditious libel.
The purpose of the press freedom clause was to address fears that seditious libel prosecutions would violate press freedom. But how? By prohibiting all prosecutions based on the tendency of words without accompanying criminal action? Or requiring proof of actual damage to reputation? Or some other standard of
[199]Indeed, Levy appears to believe that the anti-Federalists “had used the bill of rights issue as a smokescreen for objections to the Constitution that could not be dramatically popularized” and did not really want a bill of rights. Legacy at 257. Historians who have examined the anti-federalist movement in greater detail do not agree. See, e.g., Main, Jackson Turner, The Anti-federalists (1961); Wood, Gordon, The Creation of the American Republic, 1776-1787 (1969). As these works document, although some anti-federalists surely did try to capitalize on the popular appeal of the bill of rights issues, many anti-federalists were strong libertarians whose opposition did indeed center on the lack of protection for individual rights and liberties. Indeed, the obvious flaw in Levy’s view is that in several states, the promise to incorporate the bill of rights indeed did win over enough delegates who were originally opposed to achieve ratification of the Constitution. If the bill of rights issue were a mere “smokescreen” it is difficult to see why anti-federalist delegates and leaders would have agreed to ratification on this basis.
culpability such as maliciousness or intent to injure? Or by requiring the prosecutor to prove the writing in question was false, or recognizing truth of the writing as a defense? Or by requiring a jury trial on the issue of whether the writing was criminal, by contrast to the British rule where the judge made that decision? Or some combination or all of the above?
All of these issues were discussed during the ratification controversy and in the early republic. The scope of press freedom and the standards to be applied simply were not all worked out by the framers of the free press clause. What we can find in history is not an original understanding of the precise legal parameters of First Amendment interpretation for the future, but rather, an understanding of the context in which the First Amendment was adopted and the role it was meant to play in the American system of law and government. The history of the adoption of the First Amendment certainly does not support a “Blackstonian” view of press freedom or what Levy refers to as Zengerian principles, for no one during congressional debate said anything whatsoever about leaving the door open to prosecute people for expressing opposition to the government, or about truth as a defense or having the jury render a general verdict in a criminal libel case.[200]
[200] In the first Senate, an amendment was offered and rejected that would have modified the First Amendment to protect press freedom “in as ample a manner as hath at any time been secured by the common law.” Journal of the First Session of the Senate, p. 117, quoted in Emergence at 260. No debates on the proposal are recorded and there has been no other documentary evidence uncovered as to what was meant or why the proposal failed. Levy argues that the defeat of this measure did not necessarily reflect rejection of common law principles, because it may have been viewed as unnecessary or redundant. However, Levy ignores context that undermines this argument, including Congressman Jackson’s speech discussed above and Madison’s explanation introducing the Bill of Rights that the principle of press freedom was unprotected in the British constitution, that is, not congruent with British common law. In this context, an amendment to limit press freedom to common law would have narrowed the First Amendment. But the proposed amendment was defeated.