April 06 2012

Part 8: Conclusion – History and First Amendment Jurisprudence

8.1.   Levy’s Rejection of Originalism

This monograph contends that Leonard Levy presented an unduly narrow version of what press freedom under the First Amendment meant when it was adopted. But it agrees with Levy on a deeper point: historical research can only provide background for interpretation of constitutional guarantees such as freedom of the press, not define their “original meanings”. For freedom of the press, in particular, there are several “original meanings.”  For example, different “founders” (say, Madison and Hamilton) had very different views of what press freedom ought to mean, and leading politicians of the era such as Adams and Jefferson changed their positions greatly over time. Moreover, historical interpretation itself evolves, perspectives of historians shift, documents are uncovered or reinterpreted, and methods for studying history are updated. Historians are engaged in an ongoing effort to synthesize historical evidence and make sense of it. Sometimes historians manipulate evidence to support their perspective. For the history of press freedom in America is a politicized subject and historians are human.

As for this monograph, because I have focused on historical evidence demonstrating a libertarian understanding of press freedom at the time the First Amendment was adopted, and particularly on several serious errors that I find in Levy’s work, I have not focused on other evidence that Levy presents which indeed does tend to suggest a narrower understanding of press freedom at the time of the adoption of the First Amendment.[270]




[270] It should be noted that Levy missed some of this evidence as well. For example, by the mid 1790’s manuals for justices of the peace had been published in several states, including a section on libel that recognized the common law of criminal libel as having continued viability. See, e.g., Henning, William The New Virginia Justice (1795); Parker, James, The Conductor Generalis (1794) (discussing New Jersey law). Levy did not mention these manuals, which tend to support the view that the common law of criminal libel remained on the books in the early American republic. However, it should also be noted that the manuals did not mention the effect of any constitutional provision, whether state or federal,   that might have afforded additional protection to press freedom. Moreover, as discussed above, while criminal libel laws may have been on the books, there were very few criminal libel prosecutions during the period leading up to the adoption of the First Amendment or subsequently until the administration of John Adams.   Unconstitutional law sometimes remains on the books, even today. Chin, Gabriel, et al, “Still on the Books – Segregation Laws Fifty Years After Brown v. Board of Education”,   2006 Mich. St. L. R. 457.



Thus, while I believe that the “original understanding” of the press freedom guarantee was much broader than Levy argued, there are more ambiguities about the history than have been discussed here. A judge would not be more justified in claiming that the historical evidence presented in this monograph compels some particular interpretation of the press freedom clause according to its “original meaning” than in claiming that Levy’s version of history or any other version of history compels one or other interpretation. 

For Levy’s part, despite his view that the original understanding of the press freedom clause was narrower than many scholars had previously claimed, he expressed his happiness at his work being cited in support of libertarian interpretations of the First Amendment. But Justice Hugo Black, one of the leading libertarians on the U.S. Supreme Court in the postwar period, disagreed, declaring that Levy’s work to be damaging to a libertarian judicial interpretation of First Amendment freedoms.[271]  Justice Black’s concern would be warranted only if somehow judges made their decisions based upon one or other version of history, or if a libertarian view of the First Amendment were somehow discredited by Levy’s research. But there is a much richer role for history in legal decisions than the quasi-Orwellian exercise of judges, appointed for political reasons, declaring from the judicial bench what the “true” version of history is. Constitutional law comes to us with a mixed legacy. The Constitution’s origin was a complex, sophisticated political process

that created a set of basic principles for governing which were not complete and meant different things to different people at the time. Principles were mixed with promises, like the negative guarantee of press freedom that promised the government would not make laws abridging freedom of the press. The history of that promise has included real restrictions on the government protecting the press in some cases, but history also includes examples of betrayal of the free press guarantee, misunderstandings and compromises. To interpret the press freedom clause consistently with its origins does not mean implementing the legal standards of “press freedom” inherited from British law as they existed at the time of adoption, because the promise was made to address the concerns of people who clearly demanded a broader scope for press freedom. It means understanding the context in which the Bill of Rights was adopted and especially the libertarian thought and sentiment that caused the American people, in the ratification process, to require that a guarantee of press freedom be part of fundamental law. The origins of the First Amendment are therefore to be found in these libertarian traditions, but the actual dynamics underlying how courts and political leaders have interpreted the First Amendment have obviously been influenced by many other considerations.

8.2  Commonwealth v. Blanding and Justice Scalia’s View of Press Freedom under the First Amendment.

Yet original meaning has certainly become an issue in modern judicial interpretation of the Constitution. In particular, Justice Antonin Scalia has urged repeatedly that modern libertarian views of the First Amendment should be rejected on grounds that they do not comport with the original meaning of the First Amendment. Justice Scalia has not to date set forth in any detail what version of the original meaning he favors, but in a recent opinion,[272] he cited approvingly an old case, Commonwealth v. Blanding,[273]  that



[272] District of Columbia v. Heller, __US __, 128 S.Ct. 2783 (2008) (hereafter: “D.C. v.Heller”).

[273] Commonwealth v. Blanding, 3 Pick. (20 Mass.) 304 (1825) (hereafter: “Blanding”).

applied a Blackstonian view of press freedom. It is worthwhile to turn to theBlanding case, cited in a 2008 majority opinion of the Supreme Court, because it demonstrates some of the flaws in the originalist approach and just how selectively and out of context originalists sometimes interpret history.

The Blanding decision involved a news article about a coroner’s inquest that found a visitor to an inn had died of drunkenness. According to the newspaper,


It appeared from the same evidence [at the coroner’s inquest], that he [the deceased] had been boarding at said house for about eleven weeks previous to his death, and had not been sober more than four or five days in that time; and there is no doubt but he obtained the liquid poison from the landlord. Will our good citizens look on and see the home for the weary traveler made a sink of dissipation, and let such breaches of the law go unpunished? It is to be hoped, if no other notice is taken of it, that there will be measures adopted to prevent such houses from being licensed….[274]


The person prosecuted in connection with this incident was not the innkeeper whose guest had died from alcohol poisoning but the publisher of the news account. The publisher, Blanding, was charged with the crime of libeling the innkeeper. The trial judge refused to allow any evidence of the accuracy of the news story, opining that it made no difference in a criminal libel case whether the accusations were true. Nor did the judge allow the publisher to claim the article raised a legitimate issue of public concern or that it was published with that motivation. Rather, the judge declared that, as a matter of law, without any proof other than the words of the article itself, the publication was libelous and done with malicious intent. Blanding was found guilty.

According to the Blanding opinion, this conviction did not violate “liberty of the press” under the Massachusetts constitution. The opinion looked to British common law for the meaning of



[274] Providence Gazette, Feb. 20, 1822, p.3.


press freedom—absence of prior restraint, but with publishers and writers liable for “abuse” of press freedom, such as seditious, scandalous, blasphemous or indecent libel or other types of writing with a “bad tendency.” The opinion explained:

No state of society would be more deplorable than that which would admit an indiscriminate right in every citizen to arraign the conduct of every other, before the public, in newspapers, handbills or other modes of publication, not only for crimes, but for faults, foibles, deformities of mind or person, even admitting all such allegations to be true.[275]

Thus newspapers had no business reporting even true allegations that a public establishment helped a customer drink himself to death. The court made clear that anyone who published exposes or criticisms, whether true or false, of government officials, business activities, or other events of public importance, could be subject to criminal prosecution without violating press freedom. This rule, applied in today’s context, would allow criminalization of reporting about any sort of private misconduct, for example, sale of unsafe products or financial corruption in banks and investment firms.

The Blanding opinion went on to announce restrictions on press freedom that have never been imposed in American society, and would sharply curtail the role of news reports in public life. Reports of wrongdoing by a business or other type of organization would be criminal unless directed only to the owners of the organization or someone with legal responsibility for it. Complaints in court were only to be used for purposes of the court proceedings and not reported publicly.[276]  A news report of a court case, for example, might constitute “a promiscuous promulgation of the same facts” that would be punishable as a criminal libel.[277]  The Blanding court did recognize that freedom of the press would protect some degree of criticism of public officials and candidates



[275]Blanding, 20 Mass. at 312 -13.

[276] Id.,   314-17

[277] Id., at 317


for office—but only if the criticism were determined by a judge to be both “true” and made “in a decent manner” and for the purpose of “properly” affecting the outcome of the election.[278] So political campaigns would be subject to criminal prosecution if a judge decided improper statements had been made.

In 2008, Justice Scalia, writing in District of Columbia v. Heller, a landmark Second Amendment case involving the right to possession of firearms, quoted a snippet from the Blanding opinion: “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”[279] Justice Scalia used this quotation in his argument that the right to bear arms was originally understood to be an individual right; he argued that the quotation would not make sense otherwise. The reference to Blanding might be taken as only a passing reference to freedom of the press, except that Justice Scalia (in a Second Amendment case) repeatedly returned to the subject of restrictions on press freedom, asserting that “we do not read the First Amendment to protect the right of citizens to speak for any purpose[280] and that the “First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views.”[281] Justice Scalia did not elaborate on these restrictions inHeller. The only precedent he offered for the proposition that “abuses” of the press are not protected by press freedom was the Blanding case. Thus while the Heller opinion did not go so far as to propose that the Blandingdecision actually does reflect the original meaning of the press freedom guarantee, it did treat Blanding as if it were still a valid precedent in the press freedom area, rather than as a long discredited decision that presented an unduly restrictive doctrine of press freedom.



[278] Id. at 316.

[279] Heller, 128 S. Ct. at 2803, citing Blanding, 20 Mass. at 314.

[280] Heller, 128 S.Ctat 2799.

[281] Heller, 128 S.Ct. at 2821.


The Blanding case was decided in 1825, a generation after adoption of the Bill of Rights. Early nineteenth century America was a vibrant and growing society where many had found freedom and wealth, but it was also a society with limited commitment to human rights. Slavery and overt racism were the law of the land, while Native Americans were driven by force from ancestral domains and large numbers killed in the process. Attitudes toward freedom of expression shifted dramatically between the adoption of the First Amendment and the Blanding decision. For example, in the 1790s abolition of slavery could be legally advocated even in slave states,[282] but beginning in the 1820’s, slave states criminalized circulation of abolitionist writings.[283] Even in the North by the 1830’s abolitionist were being persecuted and criminal proceedings brought for teaching Black children to read.[284] Religious freedom was also on the retreat, with states once again prosecuting religious dissenters for blasphemy and overt discrimination against Catholics, Jews and Mormons.[285]  During the Washington administration the Attorney General refused to prosecute people who advocated obstruction of the tax laws because it would violate freedom of the press;[286] by the 1820’s, it was criminal libel for a newspaper to complain about a tavern letting a customer drink himself to death.

Justice Scalia chose a case from this bleak era for American civil liberties as a precedent for the proposition that press freedom guarantee and the right to bear arms were both originally



[282] See Davis, David B., The Problem of Slavery in the Age of Revolution, 1770 – 1823(1975) 196-212 (describing abolitionist activity in the South)

[283] Tyler, Alice F., Freedom’s Ferment (1944) at p. 484-85 (Georgia laws, including prohibition on abolitionist publications and bounty for capture of author). In 1829 Georgia passed a racist law prohibiting freed Blacks from communicating with slaves. See Nye, Russel B., Fettered Freedom: Civil Liberties and the Slavery Controversy, 1830-1860 (1972) at p. 155.

[284] See Whipple, at 84-124 (hereafter: Whipple) Nye, Russell B., Fettered Freedom: Civil Liberties and the Slavery Controversy, 1830-1860 (1972) 86-173.

[285] See Whipple, 38-41, 56-73; Myers, Gustavus, History of Bigotry in the United States(1943) at p. 118-174.

[286] See footnotes 202 – 204 above.


understood as individual rights and also subject to comparable restrictions. But Blanding is a questionable precedent. As discussed above, James Madison and others asserted that the First Amendment was originally understood to guarantee freedom of the press and freedom of conscience in a similar way. But no one at the time of ratification claimed that the same standards should apply freedom of the press and the right to bear arms.Blanding contains no discussion whatsoever of what press freedom under the First Amendment originally meant or of the history that had led to the adoption of the Massachusetts or federal free press guarantees. Yet inHeller, at least, a majority of the Supreme Court appears to have agreed with Justice Scalia’s assertion, relying on Blanding, that press freedom was originally understood to be subject to restrictions comparable to gun usage.

8.3. Originalism Without Reference to History – Phillip Kurland’s View of First Amendment Jurisprudence and the Patterson v. Colorado Case.

The use of Blanding as a precedent for the original meaning of press freedom can be traced to ideologically conservative academics, especially Professor Philip Kurland, who argued that modern American law of press freedom had no relation to the First Amendment but merely reflected the recent libertarian views of some justices on the Supreme Court.[287]  (Professor Kurland’s views on this subject were influential enough to have been cited in a 1982 Justice Department memo as a potential source for policy



[287] Kurland, Philip, “The Irrelevance of the Constitution: The First Amendment’s Freedom of Speech and Freedom of Press Clauses”, 29 Drake L.R. 1 (1979) (hereafter: “Kurland”. Notably, Kurland did not cite or mention at all the work of Leonard Levy, which was at the time the most in-depth historical study of the “original meaning” of the press freedom clause. In that sense, Kurland’s work was not only a misunderstanding, but also unoriginal. In a later article, Kurland seems to have retreated from this position somewhat leaving his final view of the subject quite unclear. See Kurland, P., “The Original Understanding of the Freedom of the Press Provision of the First Amendment” 55 Mississippi L.J. 235 (1985).

discussions.[288])  While Professor Kurland did not review the historical record in any detail or depth,[289] he asserted that the original understanding of press freedom under the First Amendment was basically Sir William Blackstone’s view that freedom of the press meant absence of prior restraint with no protection from criminal punishment for any publication deemed by a court to have a harmful tendency.

Professor Kurland enlisted an unlikely source in support of this view of press freedom: none other than Justice Oliver Wendell Holmes, renowned for his libertarian opinions after World War I urging a broad interpretation of the First Amendment.[290] But a decade earlier, Holmes in 1907 wrote the majority Supreme Court opinion in Patterson v. Colorado,[291] which proclaimed that freedom of the press under the First Amendment permitted criminal punishment on people for writing that was disliked by the authorities, without any proof of any connection to action. Patterson had published an editorial cartoon accusing members of the Colorado supreme court of corruption; the judges retaliated by jailing Patterson for criminal contempt of court. The U.S. Supreme Court upheld the conviction, with Holmes writing an opinion asserting that the First Amendment did not prohibit punishing people for accusing judges of corruption, even if the accusations were true.[292]

The sole authority that Holmes cited in support of this



[288] Memo from Carolyn B. Kuhl to Tex Lehar, February 9, 1982, at p.2, found athttp://www.archives.gov/news/john-roberts/accession-60-98-0832/035-chron…

[289] Kurland ignored all of the evidence set forth in this monograph to the contrary. Indeed, Kurland did not acknowledge or even reference Leonard Levy’s work, although at the time Kurland wrote, Levy was viewed by many as the leading authority on the early history of press freedom in America.

[290] Kurland, supra, 29 Drake LR at 5.

[291] 205 U.S. 454 (1907). Holmes cited Blanding as precedent for his narrow view of press freedom in Patterson. Holmes view was not unanimously accepted. The first Justice John Harlan dissented, arguing that the contempt conviction infringed on press freedom as protected under the First and Fourteenth Amendments. Justice Brewer also dissented on narrower grounds. Id., at 462, citing Commonwealth v. Blanding, supra.

[292] Holmes was very selective in his discussion of precedent. In particular he did not discuss a similar case to Patterson v. Colorado, which arose out of a federal judge’s jailing of a lawyer for contempt of court based on the publication of a newspaper article critical of he judge. This incident led to the judge’s impeachment by the House of Representatives. led to the judge’s impeachment by the House of Representatives. The impeachment seems to have reflected sentiment in Congress that the judge had violated the guarantee of press freedom. See Lofton, John, The Press as Guardian of the First Amendment (1980) at 65-76. The judge, James Peck, was acquitted by the Senate, apparently on grounds that his misconduct did not rise to the level of an impeachable offense, although there seems to have been no dispute it violated press freedom. A federal law was passed due to this affair, limiting contempt power of judges to acts in the presence of the court or actually obstructing administration of justice. 4 Stat. 487 (1831) reprinted in The Founders Constitution, Volume 4, Article 3, Section 1, Document 36. This law, called a “declaratory act” could be understood to mean that punishment for contempt based on publication of criticism of a court violated press freedom. See Ex Parte Paulson, 19 Fed. Cas. 1205 (E.D. Pa. 1835), reprinted in The Founders Constitution, Volume 4, Article 3, Section 1, Document 39 (holding that the declaratory act left the press free to publish material that might tend to influence or intimidate a federal court). Although Kurland asserted that Patterson v. Colorado reflected the original meaning of press freedom, see 29 Drake L.R. at 5, he did not discuss this historical evidence, included in a collection he himself edited, showing that earlier on it was indeed regarded as a violation of the press freedom guarantee to  use the contempt power to punish people for publishing criticism of courts.


restrictive view of the press freedom guarantee was the Blanding case. 

As Holmes matured, he came to reject the limitations on press freedom in the Patterson v. Colorado opinion. Working with Justice Louis Brandeis, Holmes developed a libertarian approach to First Amendment law, centered on the famous “clear and present danger” test, which was intended to protect from criminal punishment writings not proven to be very closely connected to criminal actions. By 1919, Holmes explicitly rejected the common law of seditious libel in no uncertain terms:

I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. [293]

Holmes’s view of history reflected that of some leading historical scholars of his day who published works asserting that



[293] Abrams v. United States, 250 U.S. 616, 631 (1919) (Holmes dissenting)

press freedom had a broad meaning in early American history.[294] His assertion that the First Amendment precluded seditious libel prosecutions was made in a dissent to a Supreme Court decision upholding a criminal conviction for writings expressing opposition to the military draft during World War I. Over the ensuing decades, Holmes’s great dissenting opinions in free press cases led the way to a revival of American legal principles of free expression.  Yet as late as 1961 the Supreme Court upheld a prosecution under the Smith Act for writing deemed to have a seditious tendency without any proof of connection to imminent action[295]. Since then, however, American jurisprudence has become much more libertarian, and there is ample precedent in both state and federal courts that indeed criminal punishment for publication of writings on grounds of their bad tendency without proven connection to imminent action does violate the guarantee of press freedom.[296] To Professor Kurland, everything Holmes wrote about press freedom after Patterson v. Colorado was not even worth considering and more recent libertarian jurisprudence of press freedom an innovation unsupported by the original understanding of the First Amendment.[297]  

Kurland also produced a leading reference work, called The Founders Constitution, which includes an unbalanced selection of



[294] Leonard Levy summarized these works. Emergence of a Free Press at xiii – xiv fn.8-11. Leading advocates of this point of view included Justices Oliver Wendell Holmes, Louis Brandeis, several members of the Warren court, Zechariah Chaffee, Henry Schofield, Theodore Schroeder, Leon Whipple and Thomas Cooley.

[295] Scales v. United States, 367 US 203 (1961); see also, Dennis v. United States, 341 US 494 (1951).

[296] See Karst, K., Levy, L. and Mahoney, D., eds., The First Amendment (1990).

[297] Other “originalists” have taken similar positions.  See, e.g.,  Berns, W., The First Amendment and the Future of American Democracy (1976); West, Thomas, “Freedom of Speech in the American Founding and in Modern Liberalism”, 21 Social Philosophy and Policy 310 (2004). Former United States Attorney General Edward Meese, a proponent of Originalism, appears to recognize that early Americans were divided on the meaning of press freedom and that the “original meaning” of the press clause was therefore unclear. Meese, E., Meese, E. III, Forte, D., and Spalding, M., The Heritage Guide to the Constitution (2005), 311-313.



historical documents that supposedly illustrate the original understanding of the Constitution and Bill of Rights.[298]  The selection chosen by Kurland to illustrate the original understanding of press freedom includes the 1825Blanding opinion and several other documents from nineteenth century[299], but the selection omits most of the historical sources of American libertarian thought discussed in this monograph.[300]  There are several difficulties with looking to Blanding as a source for ascertaining the “original meaning” of the press clause.  Blanding did not actually interpret the First Amendment at all; it was a state law case. The opinion did not discuss American common law or American traditions in any depth.  Rather,Blanding simply applied the British common law as it stood in 1825, citing several English cases decided in the decades subsequent to the adoption of the First



[298] Kurland, P. and Lerner, R., eds., The Founders’ Constitution (1987)

[299] Id., Vol. 5, Amendment I (Speech and Press), Document 31. Indeed, The Founders Constitution includes more information from the time subsequent to the adoption of the First Amendment, and less information that actually was available at the time of adoption of the First Amendment.    Id., Vol. 5, Amendment I (Speech and Press) (of documents reproduced in this section, sixteen are from prior to the adoption of the First Amendment and seventeen are from the period subsequent to adoption. There is also a list of additional references, of which 41 are from prior to the adoption of the First Amendment and fifty five are from the period subsequent to adoption.

[300] For example, The Founder’s Constitution fails to reference John Adams’ Essay on Canon and Feudal Law, Jonathan Mayhew’s famous sermon on unlimited submission, Richard Price’s Reflections on the Importance of the American Revolution, George Mason’s speech opposing prosecution for seditious words in the Virginia Ratifying convention, and the correspondence of the first two Attorneys General rejecting prosecutions based on publications as violative of press freedom, among other significant omissions from the collection of documents providing background for the press freedom guarantee.    The Founders’ Constitution does, however, include an excerpt from Burgh’s treatise, rejecting the category of criminal libel.   Levy produced an even more one sided collection of source documents that provide support for his argument that the framers of the First Amendment had a common law view of press freedom. Levy, L., ed. Freedom of the Press from Zenger to Jefferson (1966). This collection simply omits any documents at all that might support for a different historical view from Levy’s, except for James Alexander’s account of the Zenger trial.


Amendment.[301]  Thus, Blanding furnishes an early example of an American court looking to foreign law in a case of Constitutional interpretation. [302]  There was no discussion whatsoever in Blanding of how press freedom was understood at the time the First Amendment was adopted. 

The British common law standard of press freedom shifted dramatically subsequent to 1825. Indeed, by 1907, when Justice Holmes wrote Patterson v. Colorado[303], British courts had already rejected the standards set forth in the Blanding case.[304]  In 1886, a leading British case explained, “the right to discussion is also perfectly unlimited with the exception of course that it must not be



[301] Rex v. Wright, 8 T. R. 293 (1799); Rex v. Creevey, 1 Maule & Selw. 273 (1813); Rogers v. Clifton, 3 Bos. & Pul. 587; Esp. Dig. (3d ed.) 505 (1803); Rex v. Fisher, 2 Campb. 563 (1811); Starkie on Slander, c. 11 (1814). The Blanding opinion also cited one New York case, Thorn v. Blanchard, 5 Johns. R. 508 (1809) that was also decided over a decade subsequent to the adoption of the First Amendment, one British case decided several decades prior to the adoption of the First Amendment Astley v. Younge, 2 Burr. 807 (1759) , at a time when the British common law doctrine of seditious libel was unenforceable in the American colonies and when Americans like John Adams were very critical of British restrictions on press freedom; and one very old British case, Lake v. King, 1 Saund. 131(1668), from a century earlier. No Americans asserted at the time of ratification of the First Amendment that press freedom should reflect the standards of mid-seventeenth century English common law, an era notorious for the prosecution of Algernon Sidney given a death sentence based on unpublished political writings found in his lodgings. See Brant, Irving, The Bill of Rights at 154-58.

[302] Justice Scalia has elsewhere taken the position that American courts should not use foreign law as precedent, other than in exploring the ancient common law traditions that may have been reflected in the framing of American constitutional guarantees. “Full written transcript of Scalia-Breyer debate on foreign law”, Jan. 13, 2005, found at ttp://www.freerepublic.com/focus/f-news/1352357/posts.  Blanding, however, did not discuss ancient traditions, but rather focused on then-contemporary British law from the period subsequent to the adoption of the First Amendment.

[303] Patterson v. Colorado, 205 U.S. 454 (1907), discussed above at footnote 292.

[304] British decisions rendered shortly after Patterson reconfirmed the more libertarian approach of British courts. R. v. Aldred, 22 Cox CC 1 (1909); R. v. Bowman, 22 Cox CC 729 (1912); see Boasberg, James, “Seditious Libel v. Incitement to Mutiny: Britain Teaches Holmes and Hand a Lesson”, 10 Oxford Journal of Legal Studies 106 (1990).

used for the purpose of inciting a breach of the peace or to a violation of the law.”[305] The situation was rife with ironies.  In 1907 the United States Supreme Court adopted an archaic standard of press freedom relying on British cases that had already been rejected in British law.  The Pattersonopinion adopted restrictive common law doctrines that Americans – both Federalist and Jeffersonian – agreed in the early 1790’s had destroyed press freedom in Britain.  By 1907 British courts were applying a libertarian standard to protect press freedom, similar to that used by American Attorneys General in the Washington Administration, while American courts applied a much narrower standard.  Madison explained in 1789, when introducing the Bill of Rights in the First Congress that protection of press freedom needed to go beyond British common law doctrines, because “freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution.”[306]  You can only say that Patterson reflected the original understanding of the First Amendment if you disregard James Madison’s understanding. Justice Holmes did not discuss history in the Patterson v. Colorado opinion, but he subsequently did of course develop a more libertarian standard for press freedom, which he justified in part as reflecting the original understanding of the First Amendment.

8.4.  New York Times v. Sullivan and the Uses of History in First Amendment Interpretation

In 2008, a century after Patterson v. Colorado, Justice Scalia revived theBlanding case as authority for the proposition that “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”[307] In Justice Scalia’s view, the original meaning of the Constitution and Bill of Rights is not what merely was intended at the time it was adopted but also appears to include legal thinking



[305] R. v. Burns, 16 Cox CC 355, 357 (1886).

[306] Annals of Congress, vol. 1, p. 436 (1789).

[307] Heller, 128 S. Ct. at 2803, citing Blanding, 20 Mass. at 314.


on subjects like press freedom in the eighteenth century, which could show what legal thinking about constitutional rights was for several generations after adoption of the Bill of Rights.[308] Thus, Blanding, a state court case from 1825, would become relevant to the original meaning of the press freedom guarantee, even though it was a state law case that made no pretensions of declaring federal law and indeed did not even mention the First Amendment.

Justice Scalia has urged that decisions departing from his preferred version of the original meaning are erroneous and has indicated that he would indeed vote to overrule at least one important First Amendment precedent,New York Times v. Sullivan[309] (which established the requirement that actual malice be proven in civil libel cases by public figures).[310] The case



[308] See, e.g., Heller, 128 S.Ct. at p. 2802-16. Scalia looks not just to the initial interpretations of constitutional provisions, but to interpretations from the next century after the adoption of the Bill of Rights as indicators of the original meaning. Of course this gives the judicial opinions of courts dominated in the first part of the eighteenth century by Federalists in New England and by slaveholders in the South a preferred position in interpreting the Bill of Rights, than courts selected under the much more inclusive modern political process. Scalia has admitted that one of the defects of this approach is that, of course, judicial decisions from the century after the adoption of the Constitution are no less likely to depend on the judges’ personal views departing from the original meaning of the provision. Justice Scalia explained, “prior to the last 50 years or so, prior to the advent of the “Living Constitution,” judges did their distortions the good old fashioned way, the honest way — they lied about it. They said the Constitution means such and such, when it never meant such and such.” Scalia, Anton, “Constitutional Interpretation the Old Fashioned Way,” remarks delivered at the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005. The only way to tell whether or not a later judicial interpretation comported with the original meaning would be to examine what the original meaning was; but if you include the later judicial interpretation as part of the determination of the original meaning, of course you assume the conclusion.

[309] 376 U.S. 254 (1964).

[310] Scalia, Antonin, “Constitutional Interpretation the Old Fashioned Way”, speech delivered at the Woodrow Wilson International Center for Scholars in Washington, D.C., on March 14, 2005, copy available athttp://www.cfif.org/htdocs/legal_issues/legal_updates/us_supreme_court/scalia-constitutional-speech.htm and at http://a-s.clayton.edu/smattie/POLS%204426%20(S09)/Primary%20Source%20Documents/20050314ScaliaOnInterpretation.doc. Scalia has also reportedly stated off the record that he would vote to reverse New York Times v. Sullivan. See Perlstine, Norman, Off the Record (2007) at p. 77


involved a political advertisement from 1960 that castigated Alabama officials for brutality against civil rights advocates. Justice William Brennan’s opinion claimed the decision to limit libel suits by public figures was warranted by history in that “The right of free public discussion of the stewardship of public officials was…in Madison’s view, a fundamental principle of the American form of government.”[311] But Justice Scalia has condemned New York Times v. Sullivan on grounds that it is inconsistent with common law libel rules that supposedly were “universally approved” when the First Amendment was adopted. Scalia’s argument depends upon the claim that the original meaning of the press freedom under the First Amendment reflected the Blackstonian view of the eighteenth century British common law principles of press freedom, perhaps with modifications to require truth be a defense to a charge of libel against a public figure—the views reflected in the Blanding opinion. But as set forth above, there is considerable evidence that the press freedom guarantee was meant to be broader than Blackstone.  The standard of New York Times v. Sullivan,requiring that actual malice be shown in cases of libel against public figures, can be traced back to the Seven Bishops’ Case and James Alexander’s early American vision of press freedom.[312]  The American libertarian tradition of press freedom called for unrestricted criticism of public officials.  New York Times v. Sullivan, which protected a newspaper from ruinous damages based on an advertisement criticizing police brutality, is entirely consistent with that tradition. 

Justice Scalia has opined, “There is no doubt that laws against libel and obscenity do not violate the ‘freedom of speech’ to which the First Amendment refers; they existed and were universally approved in 1791.”[313]With regard to the doctrine of criminal libel,



[311] New York Times v. Sullivan, 376 U.S. at 275.

[312] Katz, ed., Zenger Papers at 199-202, reprinting James Alexander letter from the Pennsylvania Gazette, Dec. 1, 1737 (quoting Judge Powel). See text at footnotes 44 and 94 above.

[313]McIntyre v. Ohio Elections Commission, 514 U.S. 334, 371, 372 (1995 (Scalia, J., dissenting).

Justice Scalia’s assertion is contradicted by historical evidence discussed above. With regard to civil libel suits on behalf of public officials offended by criticism of their performance, there is much less direct evidence one way or the other as to the First Amendment’s original meaning. There do not appear to have been any significant American examples of public officials bringing civil libel suits for damages against their critics prior to the adoption of the First Amendment. Civil libel does not appear to have been a subject that came up during the ratification debates or in connection with the adoption of the First Amendment. There is no early history of civil libel cases under the First Amendment because a libel case is a state law matter and the First Amendment doctrine of press freedom did not apply to the states until it was held incorporated into the Fourteenth Amendment in the twentieth century. Certainly it was widely accepted that in general, private parties could bring civil suits for libel under state law at the time the First Amendment was adopted. But there were no reported eighteenth century civil libel cases brought by public figures for criticism of their official acts. As noted above, Justice Cushing indicated in 1794 that permissible legal action under the First Amendment was limited to cases of damage to privatereputation.

Libertarian political and legal theorists expressed the view that press freedom required public officials to accept attacks that might damage their reputation.[314] For example, in his influential Political Disquisitions, James Burgh declared,


Therefore no free subject ought to be under the least restraint in respect to accusing the greatest,


[314] Leading commentaries such as Cato’s Letters argued that press freedom should permit full discussion without punishment of officials’ public conduct (and of private conduct relating to conduct of public duties). Cato’s Letter No. 32, reprinted in Levy, Zenger to Jefferson at 14-15. “Friend of Harmony” wrote in 1789 urging that civil actions for libel violated press freedom. See text above at fn. 218. The American press contained a great of vituperative attacks on public officials during the eighteenth century, and Americans were not reluctant to go to court; as no civil lawsuits appear to have been brought by public officials based on publications criticizing their conduct of public business, it is difficult to make the case that freedom of the press was understood to permit such civil actions at that time.


so long as his accusation strikes only at the politicalconduct of the accused: his private we have no right to meddle with, but in so far as a known vicious private character indicates an unfitness for public power or truth. But it may be said, this is a grievous hardship on those who undertake the administration of a nation; that they are to run the hazard of being thus publicly accused of corruption, embezzlement, and other political crimes, without having it in their power to punish their slanderers. To this I answer, It is no hardship at all, but the unavoidable inconvenience attendant upon a high station, which he who dislikes must avoid, and keep himself private…. If a statesman is falsely accused, he has only to clear his character, and he appears in a fairer light than before. He must not insist on punishing his accuser: for the public security requires, that there be no danger in accusing those who undertake the administration of national affairs. The punishment of political satyrists gains credit to their writings, nor do unjust governments reap any fruit from such severities, but insults to themselves, and honour to those whom they prosecute.[315]


Thus, one of the most influential political writers in late eighteenth century America clearly supported the distinction between actions of public figures and private matters in applying the doctrine of libel.

Burgh was advocating a reformist view of press freedom; eighteenth century British common law did not recognize the same distinction between public and private spheres.  But the First Amendment did not adopt British common law. Indeed, the first Senate defeated a proposal to declare that the First Amendment protected freedom of the press “in as ample a manner as hath at any time been secured at the common law.[316] The very first



[315] Burgh, Political Disquisitions, 250-51.

[316] Journal of the First Session of the Senate, p. 117. See footnote 201 above.

application of the First Amendment during the Washington Administration was when the first Attorney General refused to undertake a criminal prosecution based on publications advocating resistance to the government, which would have been criminal seditious libel under the British common law doctrines of that era – but which were protected under American standards of press freedom. 

To incorporate a general exception for “libel” into the First Amendment would in effect rewrite the Constitution to include the limitation on press freedom that was rejected in the First Congress.  The key elements of theNew York Times v. Sullivan standard, a distinction in libel cases between public and private figures and the requirement of proof of actual malice in cases involving public figures, both have their roots in eighteenth century libertarian legal thought.  If courts in the twenty-first century decide to adopt a version of press freedom guarantee that reflects Sir William Blackstone’s version of the British common law rather than the views of James Madison and the other American libertarians discussed in this monograph, please do not blame it on the framers of the First Amendment.

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