By the late colonial period, the theory and practice of freedom of the press allowed for considerable political and moral debate. Laws against seditious libel (printed matter tending to threaten or undermine the authority of government) still existed, but the last trial for seditious libel, the case of John Peter Zenger, ended in acquittal in 1735. Some self-censorship, however, no doubt continued. Civil suits for private libel (publications defaming a private person or private characteristics) were not uncommon. Laws against blasphemy (words offending religious orthodoxy) were rarely enforced.
The most common threat to freedom of the press was the ability of colonial legislatures to jail an offender for a breach of legislative privilege (words offending a sitting legislature). Many colonists held the notion common among critics of the government that the people's liberty is always under threat from royal or ministerial power. Accordingly, the popularly elected lower houses of the various colonial legislatures came to be seen as defenders of the people's liberty against the royal governor and his allies. Criticizing a state assembly might be seen as simply freedom of the press, the right of individuals to voice their sentiments. But it might also be seen as an abuse of that freedom. Any criticism that undermined the people's faith in the assembly could be regarded as abusing one safeguard of the people's liberty (a free press) to undermine another (the popular branch of the legislature). Following this latter perspective, legislatures throughout the colonies reprimanded, fined, and even occasionally imprisoned their critics, though this became less common as the 1750s and 1760s wore on and virtually disappeared after the Revolution.
The Stamp Act (1765) taxed paper goods of all sorts and amounted to a type of censorship aimed particularly at opposition newspapers, which were less able to pay since they were less likely to profit from government printing contracts. These and other new laws seemed to reveal an unfolding conspiracy by the British ministry and its Tory allies in the colonies to promote arbitrary power. The people, led by outraged editors, actively and successfully opposed the Stamp Act.
As the wider crisis deepened in the late 1760s and early 1770s, the press flooded the colonies with provocative newspaper articles and political pamphlets on both sides. Limits on the press were still debated, but neither the royalist Tories nor the opposition Patriots could gain enough power to control it. Tories insisted that they defended an individual's right to print his political views. Patriots insisted that freedom of the press was properly used to protect the people's liberty from an overreaching government, as it always had been. The truth will prevail, the Patriots conceded, but only if there is a fair fight. With Tories propagandizing their way to complete tyrannical power, all of the people's liberties—including freedom of the press—seemed endangered. Rather than risk this, Patriots took to intimidating and even terrorizing Tory printers and authors.
With the commencement of open hostilities at Lexington and Concord, Massachusetts, on 19 April 1775, the very real threat to the people's liberties from ministerial forces became unmistakable. Both sides took to allowing only their partisans to print on their side of the war front. But during the war, within a given side, press freedom largely existed. For example, Patriots threatened other Patriots who suggested, even sarcastically, the wisdom of surrender, yet they allowed a vigorous debate over independence.
After the Revolution new, more radical leaders took power and the common people entered into public life as never before. The voters, who now usually included white men of all social ranks, expected to have a greater say in the government. The first press provisions in Revolutionary America illustrated this expectation. George Mason's Declaration of Rights for Virginia (1776) employed the traditional theory that a free press is meant as the protector of the people's liberty from tyrannical power: "The freedom of the Press is one of the greatest bulwarks of liberty, and can never by restrained but by despotick Governments." But the early constitutions also voiced the long-standing view that freedom of the press was simply a basic individual right to print what one pleased. Pennsylvania's constitution (1776) declared 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."
Having just started a war to rid themselves of what they took to be a tyrannical power, the former colonists were careful to emphasize that now the people, not a king or even the legislatures, were sovereign. Public officials were now "servants" and the people their "masters." These expansions of the theory of popular sovereignty occasioned new understandings of the role of the press and the nature of freedom of the press. Radical thought had long considered the press as a last resort should the more moderate safeguard provided by the representative legislature fail. With the advent of broad-based, annual elections for larger, more representative, and more powerful legislatures, the people's duty and the press's role increasingly centered on maintaining and shaping rather than simply defending the republics the former colonists had established.
As always, a crucial question was how far the press's liberty should go. The press clauses in the state constitutions did not specify any particular limit. The Massachusetts constitution (1780), for example, declared that "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." But town meetings debating the clause read it to provide complete impunity, even for private libel.
First Amendment. Originally, the federal Constitution (1787), like the earlier Articles of Confederation (1781), included no protection for freedom of the press. Anti-Federalists criticized this absence repeatedly in the ratification debates, but the Federalists insisted that such protection was not needed because the new national government would only have those powers expressly given to it. Press liberty was thus beyond federal authority. Many anti-Federalists maintained the traditional view that governmental power continuously and inexorably struggles to expand; without a clear declaration protecting press freedom, they argued, the national government would soon seek to limit freedom of the press. Such a limitation, they feared, would undermine the more engaged oversight of the government that they expected of republican citizens.
Critics of the Constitution were more likely than its supporters to stress the advantages of an active press. The anti-Federalists admitted that publications might contain abusive language and false claims, but said the advantages to the people outweighed the disadvantages. Moreover, they argued, the disadvantages of an unbounded political press simply had to be borne, since they were interwoven with the advantages. Federalists were more likely than their critics to stress the disadvantages of an unrestricted political press, in particular an ill-informed but empowered citizenry.
Though he was the "father of the Constitution," James Madison came to see the importance of a bill of rights to protect basic liberties. After ratification, Madison proposed a number of amendments in Congress. He saw more clearly than anyone that while there still remained a threat that the government might tyrannize the people, the bigger threat was that a majority of the people would tyrannize over a minority of controversial printers and authors. Madison drafted, and the House of Representatives passed, two clauses protecting press liberty from the state and federal governments. The Senate, however, revised them into what became the First Amendment, which states in part: "Congress shall make no law . . . abridging the freedom of speech, or of the press."
Federalists versus Democratic Republicans. Differences over the proper interpretation of the vaguely worded press clause became heated as competing parties emerged. The Federalist Party spent the 1790s debating policy and exchanging newspaper attacks with the emerging opposition party, the Democratic Republicans (led by Madison and Thomas Jefferson). Newspaper impartiality—never pure or perfect—became a victim of increasing partisanship, and editors began ridiculing, for the first time, the very idea of impartiality. In 1798 the Federalists used the pretext of the Quasi-War (1798-1800) with France to pass a number of draconian measures, including the Sedition Act, which was intended to silence Republican printers and other critics of government.
The Sedition Act criminalized "any false, scandalous and malicious . . . writings against the government of the United States . . . or Congress . . . or the President . . . , with intent to defame . . . or to bring them . . . into contempt or disrepute." The Federalists followed the standard established in the Zenger case (1735) by allowing evidence of the truth of the alleged libel to be presented and allowing the jury to issue a general verdict, not merely a "special verdict" on the fact of publication only.
Despite this break with the British common law tradition (in which truth was immaterial), the Sedition Act seemed tyrannical to many people. Federalist Party leaders did not see themselves as despotic or even partisan, but rather as loyal to the elected government. Still, the political nature of the sedition legislation was evident from both its expiration date and its execution. The law was to expire not at the end of the international crisis with France, but at the end of Federalist president John Adams's term on 3 March 1801. Moreover, only Republicans were indicted, and most of the major opposition papers and several minor ones were targeted before the election of 1800.
Republicans repeatedly insisted that the Sedition Act was unconstitutional. Federalists countered by claiming that the freedom of the press had historically allowed for laws against abuse of the press. Their theory of press liberty adapted traditional concerns about press abuse to their view of the new republican theory of government. To them, the Republican critics of government were not defending the people, but attacking them through their elected officials. Moreover, the Federalists maintained that America's republican form of government made regulating the press even more important than in any other form of government, since elective government ultimately rested on a truthfully informed electorate. The general public's limited information and education was good reason, Federalists maintained, to mandate constrained and decorous press discourse, lest the people be confused or deceived. For the Republicans, to the contrary, the people's limited information meant more wide-open political debate was needed. A republican form of government did not rely merely on elections every few years, they contended, but on continuing debate of public men and measures.
That debate, Federalists observed, had led to a world of deceptive half-truths and outright lies. The political discourse of the 1790s was among the most vitriolic and partisan of any era in America. Republicans—like the anti-Federalists before them—conceded that the truth did not always immediately prevail, but they maintained that opinion, not truth, was what was really at issue in political debates. Factual truths that could be proven in a court of law were rarely if ever central to a seditious libel case; therefore, interpretations of freedom of the press that included protections for provable truth—such as the Sedition Act—were really despotic limitations on press liberty. Moreover, Republicans insisted that the liberty of the press and its licentiousness—its use and abuse—were inseparable: one simply could not separate and punish what was false and abusive without undermining the necessary and salutary critiques of a spirited, democratic press.
Republicans like James Madison, then, were formulating and defending a broad notion of press liberty that allowed for civil suits for private defamation but dispensed with the notion of public libel. Only actual, overt acts of violence or rebellion would be punishable crimes. This theory, however, was developed by the opposition party at its most extreme and embattled. Once in power, President Jefferson pardoned the victims of the expired Sedition Act but soon also encouraged the use of state seditious libel laws against critics of his administration. In one of these cases, People v. Croswell (1804), the Federalist Alexander Hamilton defended Jefferson's critic by espousing principles that were actually more restrictive than those in the disputed Sedition Act (though they were less restrictive than those of the Jeffersonian prosecutor). Hamilton's theory of seditious libel gave the jury uncontestable authority to find a general verdict and made truth a justification only if published "with good motives and for justifiable ends." Hamilton lost the case, but this standard soon became law in New York and many other states. At the national level, U.S. v. Hudson and Goodwin (1812) rejected federal jurisdiction over the common law crime of seditious libel.
Struggles over the press continued. During the War of 1812, riots that centered on a Baltimore newspaper office left the office destroyed and many people dead. Yet, in the face of successful British attacks on American soil and arguably treasonous discussions of New England secession, the Madison administration made no attempt to enact federal restrictions on the press. Nevertheless, it was Hamilton's theory of freedom of the press, not Madison's, that was predominant and generally followed throughout the nineteenth century.
Reflecting on the late colonial and early National period, some scholars (e.g., Levy 1985) have placed all emphasis on official restrictions such as the Sedition Act. Others (e.g., Smith 1988) stress the opposition to seditious libel laws and the practical reality of an open and at times licentious political press. The American approach to press liberty during this period included both of these extremes and is perhaps best understood as an ambivalent tradition (Martin 2001).