How Free Press fought its way to the First Amendment

The incorporation of the Right to a Free Press in the First Amendment: the outcome of a long-lasting political discord.

Civil liberties flourished in America even before the adoption of the Constitution in 1788. As a result, events limiting or restraining liberties always made a loud noise and resonated strongly in public debates. When it comes to the freedom of the Press, the 1735 prosecution of John Peter Zenger for seditious libel was of major impact: a prosecution that stimulated legal and political debate concerning the freedom of speech and press, knowing that a strong degree of freedom of the press in America, as in England, was within the social configuration of the Nation.

This right was inspired by a core principle of the U.S. system of Government: the social compact theory.¹ The underlying idea of the said principle was that the Government existed by the consent of the governed, that the people created the Government. Thereby, when reflecting upon how this right — freedom of the Press —came about, it should not be surprising to see that some state Constitutions, before the first amendment to the Federal Constitution, protected and guaranteed — to a certain extent — this right. The first state having done so was Virginia, in its 1776 Constitution. And some others followed later on.

It is also important to point out that the meaning of the liberty of the press, even if never explicitly and agreed upon by the political elite at the time, has strongly changed throughout the unstable period that preceded the adoption of the Federal Constitution, and even after its adoption and that of the Bill of Rights. Levy mentions that even some of the Framers of the Constitution, notably Ben Franklin and Hugh Williamson, were unable to come up with their understanding of what a free press means.²

Perhaps Jefferson’s thoughts on the Freedom of the Press represented best the restrictions put on said freedom at the time: the major concern was to keep the Government out of the range of free speech and press. Therefore, Jefferson and many of his contemporaries supported an “unrestricted public discussion of issues ”that meant — in their eyes — the absence of censorship only IN ADVANCE of publication.³ Meaning that no one needed a license to be able to publish their opinion, but that they were still responsible for what they said under the spectrum of criminal law.

In 1797, Chief Justice Thomas McKean from Pennsylvania ruled: “The liberty of the press is, indeed, essential to the nature of a free State, but this consists in laying no previous restraints upon public actions, and not in freedom from censure for a criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public . . . but take the consequences”.³ In many States, part of which Pennsylvania, one could publish without fear of censorship but might be criminally convicted for aspersions on the government. The meaning of a free press was thus the guarantee of no PRIOR restriction, without any guarantee of security and safety from Government repression AFTER the publication and as a result of it. Benjamin Franklin even supported the use of the cudgels “to break the heads of those who used the press for libels”.⁴

Virginia’s public law accepted prosecutions for criminal words and even rejected truth as a defense against seditious libel. American libertarians repeatedly advocated for the recognition of truth as a defense against seditious libel, as well as the possibility for the accused to be trialed by a jury. But surprisingly, they did not, at the time, argue the sense that was accepted for the liberty of the press.

Furthermore, the controversy was not limited to the substantive meaning of a free press, but the debate also reflected in first place on the need and utility of declaring such freedom in the Federal Constitution that was being prepared: Charles Pinckney, of South Carolina, advocated for the insertion of a declaration “that the liberty of the Press should be inviolably observed.“

Whereas the opposite opinion, — that Judge Roger Sherman, of Connecticut, summarized as follows: “It is unnecessary. The power of Congress does not extend to the Press” — was the prevailing one, since Pinckney’s motion lost 7-4 at the time.⁵

Levy highlights in his book that “Throughout the nation, freedom of the press became a topic for grand declamation, but nowhere was the insistent demand for its constitutional protection accompanied by a reasoned consideration of what it meant”.⁶ As if its sense was self-evident!

In the end, the Right to a Free Press made it through several controversies and oppositions and formed part of the Bill of Rights, being incorporated in its first amendment. But this “achievement” was a result of endless back-and-forth among the political elite.  Opponents of the Constitution frequently advocated for a guarantee that liberty of the press “ought never to be restrained ”. In retrospect, it is clear that they did so not to protect the freedom of the Press, but rather to limit the possibility for the Federal Government to interfere in the states’ range of prerogatives. The Anti-Federalists urged a free press clause to prevent a tax on the press: Richard Henry Lee of Virginia and Melancthon Smith of New York shared the belief that a federal free press clause would keep Congress from taxing the press. Whereas at the time, State’s free press clause did not keep the States’ Governments from taxing the press. For instance: in Massachusetts, a free press clause didn’t prevent the enactment of a tax on newspapers.

To re-tackle what has been said about the evolution of the meaning of the free press, and especially Jefferson’s thoughts on it, the Former President recommended the adoption of the following version of the liberty of the press among the amendments proposed by Madison and that later constituted the Bill of Rights: “the people shall not be deprived or abridged of their right to speak or write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” Jefferson was disappointed to see that his revision was not adopted.⁷It seemed as if the political elite was trying to avoid — or maybe was not concerned at all — when preparing the Bill of Rights, about the meaning and the substance of the freedom of the press. This negligence was flagrant during the debates held by the First Congress. Levy argues that “The state legislatures that ratified the First Amendment offer no enlightenment… Most people undoubtedly cared about protecting the freedom of the press, but no one seems to have cared enough to clarify what he meant by the subject upon which he lavished praise.”⁸Not even the Anti-Federalists — who were extremely careful not to let the Federal Government’s powers increase—cared to criticize the status quo of the meaning of the liberty of the press, which did not protect against prosecutions for criminal defamation of the government.

Undeniably, the Framers’ real concern that they ought to satisfy through the free press clause was to reserve to the states an exclusive legislative prerogative in the realm of speech and press, and not merely to protect free discourse.

However, as aforementioned, it is not sure that such a clause was even necessary, and many knew it. The Federal Government was constituted in a way not to be able to interfere in issues and matters not explicitly attributed to its competencies: nowhere in the Constitution is the power to enact laws restricting the freedom of speech and press among the powers enumerated and attributed to the Federal Government. Meaning that the First Amendment was merely nothing else than beating a dead horse: confirming what was already decided and known by all. As Levy wrote: “The objective of the amendment was to quiet public apprehension by offering further assurance that Congress would be limited to the exercise of its delegated powers.”⁹