Evidence from Around the Framing: The Freedom of the Press as a Right of "Every Freeman"

|The Volokh Conspiracy |

In this post, I'm continuing my series on "Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today," based on my Penn Law Review article. Here, I'll offer some general evidence about how the freedom of the press was understood during the Framing era, as referring to everyone, not just professional members of the media; in later posts, I'll talk about some specific court cases that reflected this view.

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[A.] Cases, Treatises, and Constitutions

Early formulations of the freedom of the press spoke of it as a right of every "freeman," "citizen," or "individual." These formulations often set forth narrow substantive views of the "freedom of the press." But, whatever the scope of the right, it belonged to everyone (or at least all free citizens).

Blackstone, for instance, wrote in 1769 that "[e]very freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press." Jean-Louis de Lolme, an author widely cited by 1780s American writers, likewise wrote in his chapter on "Liberty of the Press" that "[e]very subject in England has not only a right to present petitions, to the King, or the Houses of Parliament; but he has a right also to lay his complaints and observations before the Public, by the means of an open press." The right to present petitions, of course, was not limited to the press as an industry, but really did belong to "[e]very subject." De Lolme's explanation suggests that the right to speak to the public via "an open press" likewise extended to all subjects, whether or not they used the printing press for a living.

State supreme courts in 1788 and 1791 similarly described the liberty of the press as "permitting every man to publish his opinions," and as meaning that "the citizen has a right to publish his sentiments upon all political, as well as moral and literary subjects." Justice Iredell described the liberty of the press in 1799 as meaning that "[e]very freeman has an undoubted right to lay what sentiments he pleases before the public." St. George Tucker, in 1803, defined the "freedom of the press" as meaning that "[e]very individual, certainly, has a right to speak, or publish, his sentiments on the measures of government."

Several early state constitutions echoed this as well, providing that "[e]very citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty." Likewise, Justice Story, who wrote in 1833 but who had learned the law in the decade following the enactment of the Bill of Rights, described the First Amendment as providing that "every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person … or attempt to subvert the government." These references to a right of "every freeman," "every man," "every citizen," and "every individual" appear to refer to every person's right to use printing technology. They are much less consistent with the notion that the right gave special protection to the few men who were members of a particular industry.

Some early state constitutions mentioned both the "every citizen" phrase and, separately, the "liberty of speech, or of the press," but as the Pennsylvania Constitution of 1776 shows, these formulations did not describe separate rights. The Pennsylvania text read, "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," which suggests that the freedom of the press was a restatement of the right of "the people" to publish.

Early cases, such as the 1803 Runkle v. Meyer decision, likewise treat the "liberty of the press" as equivalent to the provision that "every citizen may freely speak, write and print on any subject." And St. George Tucker, Chancellor Kent, and Justice Joseph Story all treated the First Amendment phrase "freedom of the speech, and of the press" as interchangeable with the state constitutional provisions that "every citizen may freely speak, write, and publish his sentiments."

[B.] The Structure of the Framing-Era Newspaper Industry

The view that "freedom of the press" covers "every citizen," even people who aren't members of the publishing industry, also makes sense given how many important authors of the time were not members of that industry.

Newspapers of the era were small enterprises, with few or no employees. Woodward and Bernstein were many decades in the future; Framing-era newspapers didn't do sustained investigative journalism.

And while those newspapers doubtless contributed facts and opinions to public debate, some of the most important such contributions in newspapers came from people who were not publishers, printers, editors, or their employees—Madison, Hamilton, and Jay's The Federalist essays are a classic example. "[N]ot a few of the country editors … depended for what literary work their vocation demanded upon the assistance of friends who liked being 'contributors to the press' without fee."

It seems unlikely that the Framers would have secured a special right limited to this small industry, an industry that included only part of the major contributors to public debate. This is especially so given that some of the most powerful and wealthy contributors, such as the politicians and planters who wrote so much of the important published material, weren't part of the industry. Some eighteenth-century American political figures—such as the young Benjamin Franklin and Representative Matthew Lyon, one of the targets of a Sedition Act prosecution—were indeed newspapermen, but they were rare exceptions.

Political elites sometimes secure rights for themselves. They sometimes secure rights for the whole public. But it seems unlikely that they would have secured rights for a class of tradesmen who were generally poorer and less powerful than the elites, and would have denied those rights to themselves and to people of their class. Rather, as William Livingston—who later became a governor of New Jersey and a delegate to the Constitutional Convention—wrote in his 1753 essay titled Of the Use, Abuse, and Liberty of the Press, one of the great benefits provided by "the Art of Printing" and "the Invention of the Press" is that "the Press" could be used by "Writers of every Character and Genius," including "[t]he Patriot," "[t]he Divine" (i.e., the clergyman), "the Philosopher, the Moralist, the Lawyer, and Men of every other Profession and Character, whose Sentiments may be diffused with the greatest Ease and Dispatch."

To be sure, the Framers praised newspapers, sometimes extravagantly so; consider Jefferson's statement that, "were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter." But Jefferson spoke of newspapers, not newspapermen. There is no reason to think his praise, or the Free Press Clause, excluded newspapers as a means of propagating the views of authors who weren't part of the press-as-industry but who occasionally submitted their articles for publication.

It's theoretically conceivable that a right of "every person" to publish using the press might refer only to the right of every person—including Livingston's clergyman, philosopher, moralist, or lawyer—to buy a printing press and to start printing using that press, or perhaps to start a regular newspaper published on someone else's press. Once a person buys the press or starts a newspaper, the theory would go, what the person publishes with it would be protected by the freedom of the press. But until then, the freedom of the press does not cover any article the person submits to a newspaper, or any leaflet that the person pays a printer to print.

This, though, seems like an odd understanding of the "undoubted right" of "[e]very freeman" "to lay what sentiments he pleases before the public." Buying a press and hiring a printer to operate it—or starting a newspaper and hiring an editor—was an expensive and cumbersome means of laying your sentiments before the public.

Indeed, even rich and influential American politicians did not take such steps. If they wanted to publish something, they would submit it to a newspaper (for a famous example, consider Madison, Hamilton, and Jay's The Federalist), or help pay for its publication as a pamphlet (as Hamilton did for the second edition of The Federalist, and as Thomas Paine did for Common Sense).

Again, one can imagine a notion of the "undoubted right" of "[e]very freeman" "to lay what sentiments he pleases before the public" under which those publications were not seen as protected by the author's freedom of the press— so that authors who really wanted such protection (for instance, against a libel lawsuit, libel prosecution, or injunction) had to buy their own presses or start their own newspapers, which they almost never did. But the cases, commentaries, and Framing-era practice do not suggest that anyone at the time had such an odd understanding of what "[e]very freeman['s]" "right" meant.

[C.] The (Possibly) Dissenting Sources

I have found only two early sources that could be read as supporting a view that the liberty of the press might belong only to printers or newspaper publishers, though both include language that points in both directions.

The first source is Francis Ludlow Holt's The Law of Libel (1812), which says that "[t]he liberty of the press … is only one of the personal rights of the printer." But other parts of the same chapter suggest that Holt viewed the right as belonging to authors—including ones who aren't printers or their employees—and not just printers.

Two pages later, Holt defines "[t]he liberty of the press" as "the personal liberty of the writer to express his thoughts in the more [im]proved way invented by human ingenuity in the form of the press." He likewise describes the "liberty of the press" as "what is necessarily included in its equivalent and progressive terms, thinking, speaking, and writing," as "one of the forms of the liberty of speech and communication," and later in the book as "[t]he natural liberty of the people" to engage in "opinion, … inquiry, and … discussion" about Parliament. And Holt notes that "with a very few exceptions, whatever any one has a right both to think and to speak, he has likewise a consequential right to print and to publish." This seems more consistent with all speakers' and writers' right to express their views using the press-as-technology, rather than with a right limited to the few people who are members of the press-as-industry.

The second source is a civics schoolbook called First Lessons in Civil Government (1843), in which the author writes, with regard to the New York Constitution,

The section which remains to be noticed, is that which secures to all the right "freely to speak, write, and publish their sentiments;" that is, the liberty of speech and of the press. A press is a machine for printing; but the word is also used to signify the business of printing and publishing; hence liberty of the press is the free right to publish books or papers without restraint.

This too is ambiguous. The first sentence speaks of a right of "all," and the "free right to publish books or papers" could be read as a right of all, since "publishing" was a general term for what authors did and not just for what printers did. But the "business of printing and publishing" clause suggests that the right is limited to those in the press-as-industry.

Yet however one reads these two sources, I think they do not overcome the evidence of the other sources mentioned earlier in this Part, coupled with the sources discussed below.

[D.] The Grammatical Structure of "the Freedom of Speech, or of the Press"

The grammatical structure of the First Amendment likewise suggests that the freedom was the freedom "of every freeman" or "every citizen" to use the press-as-technology, and not a freedom belonging to the press-as-industry.

As Justice Scalia pointed out in Citizens United, the shared words "freedom of" in the phrase the "freedom of speech, or of the press" are most reasonably understood as playing the same role for both "speech" and "press." The "freedom of speech" is freedom to engage in an activity, much like "freedom of movement" or "freedom of religion." In particular, it is the freedom to use the faculty of speech. This suggests that "freedom of the press" is likewise freedom to engage in an activity by using the faculty of the printing press.

This is supported by sources that discuss the "freedom in the use of the press." Thus, James Madison, in his 1800 Report on the Virginia Resolutions, wrote that American law provided "a different degree of freedom in the use of the press" than English law did. The Massachusetts response to the Virginia resolutions replied that the "freedom of the press" "is a security for the rational use, and not the abuse of the press." St. George Tucker's influential 1803 work, in discussing the freedom of the press, spoke of "[w]hoever makes use of the press as the vehicle of his sentiments on any subjects." The freedom of the press was "freedom in the use of the press," much as freedom of speech was freedom in the use of speech.

Likewise, Madison's Report also quoted a phrase from Virginia's ratifying convention: "We, the Delegates of the people of Virginia … declare and make known … that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States." Again, the phrase "the liberty of" is seen as applying equally to "conscience" and "the press." Here too this suggests that, just as the liberty of conscience was seen during that era as each person's freedom to worship or to think and speak as he wished on religious matters, so the liberty of the press meant each person's freedom to publish.

Of course, "freedom of" is also sometimes used in the possessive sense to refer to the freedom of a particular group. One might, for instance, speak of "the freedom of Americans to speak," or "the freedom of Catholics to practice their religion."

But writers generally don't yoke together two such different meanings with the same words: it would be odd for "the freedom of" in "the freedom of speech, or of the press" to mean one thing in the first part of the phrase (i.e., everyone's freedom to use the faculty of speech) and a different thing in the second part (i.e., the freedom belonging to a particular group, the press-as-industry). And as the sources mentioned in Part III suggest, the First Amendment was not read in this odd way—the freedom of the press was understood as the freedom of everyone to publish, just as the freedom of speech was the freedom of everyone to speak.

NEXT: Pardon Jack Johnson

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  1. Some of those “every man” or “every freeman” quotes were followed up with a “but” – which tried to limit the scope of the freedom.

    Which I suppose isn’t strictly relevant, since we’re first establishing that the First Amendment doesn’t give special protections to the organized media, but I think it’s interesting.

  2. Freedom of the press, as understood by the Founders, was protection for the publisher, not for what we’d now call “reporters” or “journalists”. We’ve extended the meaning of the first-amendment “freedom of the press” to include what we now call newsgathering and investigation as implied by the freedom of the press, since the ability to print whatever loses meaning if there isn’t a corresponding right to find out.

    Because the protection of “newsgathering” is implied by freedom of the press, however, different people can have different understandings of the implication, specifically, of where the perimeter of protected activities lies. So, for example, if a reporter attempts a “sting” operation in which a bribe is to be offered to a public official, to see if the official accepts it (and publish if so)… is that a simple case of attempted bribery, which can be treated as a criminal act, or is it “newsgathering”, protected by the First? Different opinions can arise.
    If my investigative blog wants to assert that prominent businessman “X” is a collector of child pornography, and X denies it, so I publish some of his collection to prove it… am I conducting investigative journalism, or am I just another publisher of such material? There’s ramifications in both criminal and civil court. Does the subject of such images have a valid claim against me for invasion of privacy?

    CONT’D

  3. Freedom of the press, as understood by the Founders, was protection for the publisher, not for what we’d now call “reporters” or “journalists”. We’ve extended the meaning of the first-amendment “freedom of the press” to include what we now call newsgathering and investigation as implied by the freedom of the press, since the ability to print whatever loses meaning if there isn’t a corresponding right to find out.

    Because the protection of “newsgathering” is implied by freedom of the press, however, different people can have different understandings of the implication, specifically, of where the perimeter of protected activities lies. So, for example, if a reporter attempts a “sting” operation in which a bribe is to be offered to a public official, to see if the official accepts it (and publish if so)… is that a simple case of attempted bribery, which can be treated as a criminal act, or is it “newsgathering”, protected by the First? Different opinions can arise.
    If my investigative blog wants to assert that prominent businessman “X” is a collector of child pornography, and X denies it, so I publish some of his collection to prove it… am I conducting investigative journalism, or am I just another publisher of such material? There’s ramifications in both criminal and civil court. Does the subject of such images have a valid claim against me for invasion of privacy?

    CONT’D

    1. CONT’D 2/2
      I’m suggesting that, regardless of what the Framers envisaged, it might be the case that some fringe questions of law might hinge on expertise, with an “expert” journalist treated differently than a casual journalist.or a not-any-kind-of-journalist.

      Then, separately, you’re using “professional journalist” and “ordinary citizen”, but I think the second one is too restrictive. The first amendment contains no restriction to “citizens”. Its benefits flow to all people, citizens and non-citizen residents alike. Arguably, it extends to people who’ve never even been in the U.S., because the format is a prohibition on action by Congress, not a positive grant to individuals.

      1. The obvious problem with this, is that as soon as you divide the populace into two groups, one with more rights than the other, the government has an incentive to dishonestly assign membership to those groups, to manipulate who gets the rights.

        1. The populace is divided into two (or more) groups in LOTS of legal settings. Most obviously, in the rules of evidence, between witnesses and expert witnesses, who have substantially divergent “rights” when testifying.
          There’s also the matter of privileged communication, which is (mostly) recognized through occupation… doctor/patient, clergy, attorney/client. These are also counter to the Constitutional principle that an accused must be accorded a mechanism for obtaining compulsory attentence of witnesses.

          This happens because laws have to define the interfaces between different rights, and different factors can affect the calculation of where that boundary should lie. On the one hand, the state has an interest in having any relevant evidence available to the fact-finder in a trial, but on the other, the state ALSO has an interest in people being able to trust that their attorney will keep their confidences. So the prosecutor can’t just summon the defense attorney to the witness stand and ask “did your guy do it?”

  4. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    The relevant portion is open ended though the First Amendment at the end does reference a “right of the people,” which was generally understood (fwiw especially if we are incorporating into a later amendment) to mean a certain political community. There was no right, in other words, for slaves [or foreigners under this clause] to petition the government. Slaves were called “persons” elsewhere though as Lincoln noted at Cooper Union.

    “The people” and “person” or “people” in general have certain nuances in that respect.

    1. I read the first part as not specifying who was protected, because Congress was flatly barred from legislating on the topic, at all.

      Who has the protection isn’t at all relevant if the whole topic is off limits.

      1. One of the principles of interpreting the Constitution is an assumption that no part of the text is wasted, it’s all in there on purpose and so you aren’t supposed to just skip over parts of the text that appear “extra”.

        Another fundamental assumption is that the words used are the words that were intended to be used. So if a right is granted to “people”, it’s granted to “people”, not just “citizens”. It’s important to note that the Constitution provides for multiple sources of law… Congress can pass legislation that is enacted into law, treaties have the force of law, and states can exercise their power to create law. So while the proscription of the first amendment is absolute, it specifically limits ONLY Congress. The States could, and some did, enact some laws that would have run afoul of the first amendment if it read “Neither Congress nor any state shall make any law…” It wasn’t until the fourteenth amendment, that the Bill of Rights was taken to apply to state legislatures, as well as the federal level. And at that level, the legal reasoning is messy, because history is very turbulent and the change in the balance of power between the states and the federal government was imposed by force of arms rather than by popular acclaim.

      2. Sure — some of the comments regarding the travel ban are a bit confused in that respect.

        The ban would be relevant there particularly in that statutory law is allegedly being applied; it is not merely the executive himself using his own inherent power. If Congress could not “establish religion,” law that is “executed” by others pass by them could not either.

  5. The most powerful exerciser of freedom of the press today might be Google:

    “By inserting negative search suggestions . . . search engines like Google can shift the opinions of undecided voters by up to 43.4 percent, according to new research by a team at the American Institute for Behavioral Research and Technology . .

    The voting preferences of participants who saw no search suggestions shifted toward the favored candidate by 37.1%. The voting preferences of participants in the search suggestion groups who saw only positive search suggestions shifted similarly (35.6%). However, the voting preferences of participants who saw three positive search suggestions and one negative search suggestion barely shifted (1.8%); this occurred because the negative search suggestion attracted more than 40% of the clicks (negativity bias). In other words, a single negative search suggestion can impact opinions dramatically. Participants who were shown four negative suggestions (and no positives) shifted away from the candidate shown in the search bar (-43.4%).

    The researchers conclude that by using this method of manipulation, search engines can shift a “50/50 split split among people who are undecided on an issue to a 90/10 split without people’s awareness and without leaving a paper trail for authorities to follow.””

  6. Where’s Lathrop to argue that the press guild is super special?

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