Free Speech

Evidence from Around the Framing: The Freedom of the Press Covering Authors of Books and Pamphlets

More on why the freedom of the press wasn't seen as limited to "the press" in the sense of the institutional media, but extended to all who used the printing press.

|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.

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Any Framing-era understanding limiting the "freedom of the press" to the press-as-industry is especially unlikely, given the then-existing understanding that the freedom protected books and pamphlets alongside newspapers.

[A.] The Non-Press-as-Industry Status of Many Book and Pamphlet Authors

Books and pamphlets of that era were written largely by scientists, philosophers, planters, ministers, politicians, and ordinary citizens, rather than by members of the institutional press. In the words of Benjamin Rush—a leading American physician and intellectual—writing in 1790, "Our authors and scholars are generally men of business, and make their literary pursuits subservient to their interests…. Men, who are philosophers or poets, without other pursuits, had better end their days in an old country."

Some books of the era were funded by printers who were members of the press-as-industry. Others were funded by authors themselves, by ideological groups, or by "subscribers" who supported the cost of production by paying the printer up front for printing the book. Some books were likely published with hope of profit, and others chiefly out of a desire to spread ideas. But in each of these categories, people outside the press-as-industry wrote many of these books.

Such authors were outside the "art or business of printing and publishing," to quote the 1828 Noah Webster definition of "press" that most closely fits the press-as-industry model. They did not fit within the "press" in the sense of "[n]ewspapers, journals, and periodical literature collectively," to quote the comparable definition from the Oxford English Dictionary. They likewise would not have fit within the "press" as understood by the few modern decisions that adopt a press-as-industry view of the First Amendment.

Such authors were akin to a modern businessman writing and distributing a book or funding a video program: they rented facilities and services from printers, but they were not in the printing business themselves. Yet books and pamphlets, which were predominantly written by such authors, were routinely understood to be covered by the "freedom of the press," which suggests that this liberty was under-stood as encompassing more than just the press-as-industry.

To be sure, one could define such authors as part of "the press" on the grounds that they used the press to communicate, even if they didn't own presses or make a living from presses. But that would be the same as adopting the press-as-technology model. Book authors' relationship to "the press" was in essence the same as the relationship of the modern authors of occasional newspaper articles to the newspaper owners, or the relationship of modern advertisers to the newspaper owners. All such authors used the press-as-technology by borrowing or renting space on printing presses from members of the press-as-industry.

[B.] Specific References to the Freedom of the Press as Covering Books and Pamphlets

Around the Framing, books were clearly seen as covered by the liberty of the press. David Hume's The History of England, for instance, said this to describe the 1694 expiration of the statute that required a license to print:

The liberty of the press did not even commence with the revolution [of 1689]. It was not till 1694, that the restraints were taken off; to the great displeasure of the king, and his ministers, who, seeing nowhere in any government, during present or past ages, any example of such unlimited freedom, doubted much of its salutary effects, and probably thought, that no books or writings would ever so much improve the general understanding of men, as to render it safe to entrust them with an indulgence so easily abused.

Likewise, in his 1741 essay Liberty of the Press, Hume noted that "[w]e need not dread from [the liberty of the press] any such ill Consequences as followed from the Harangues of the popular Demagogues of Athens and Tribunes of Rome" because a "Man reads a Book or Pamphlet alone and coolly" rather than surrounded by a mob that may inflame him. Similarly, in 1788, James Iredell—then a defender of the proposed Constitution and a soon-to-be Supreme Court Justice—spoke of the liberty of the press as including books:

The liberty of the press is always a grand topic for declamation, but the future Congress will have no other authority over this than to secure to authors for a limited time an exclusive privilege of publishing their works.— This authority has been long exercised in England, where the press is as free as among ourselves or in any country in the world; and surely such an encouragement to genius is no restraint on the liberty of the press, since men are allowed to publish what they please of their own, and so far as this may be deemed a restraint upon others it is certainly a reasonable one … . If the Congress should exercise any other power over the press than this, they will do it without any warrant from this constitution, and must answer for it as for any other act of tyranny.

Copyright law at the time covered books, maps, and charts, but not newspapers. To talk about copyright law as even potentially related—however benignly—to the freedom of the press suggests that the freedom of the press was seen as applicable to books.

Judge Alexander Addison's 1799 grand jury charge similarly stated that "the freedom of the press consists in this, that any man may, without the consent of any other, print any book or writing whatever, being … liable to punishment, if he injure an individual or the public." A law "that no book should be printed without permission from a certain officer," Addison said in the same charge, "would be a law abridging the liberty of the press." And St. George Tucker, in 1803, echoed Hume in writing that the expiration of the licensing of printers in 1694 "established the freedom of the press in England," partly by freeing the printing and distribution of books.

[C.] Freedom of the Press as Extending to Literary, Religious, and Scientific Works

Many leading sources of that era also spoke of the liberty of the press as extending to literary, religious, and scientific writings, which were often (probably much more often than not) published by people who did not engage in journalism or printing for a living. Hume's Of the Liberty of the Press, for instance, discussed "the Liberty of the Press, by which all the Learning, Wit, and Genius of the Nation may be employ'd on the side of [freedom] and everyone be animated to its Defence." The Continental Congress's 1774 Letter to the Inhabitants of Quebec discussed the importance of the freedom of the press as consisting in part of "the advancement of truth, science, morality, and arts," as well as of politics. Nor was this an original view at the time; the French philosopher Helvetius, who was well known to the Framing generation, similarly wrote that "[i]t is to contradiction, and consequently to the liberty of the press, that physics owes its improvements. Had this liberty never subsisted, how many errors, consecrated by time, would be cited as incontestible axioms! What is here said of physics is applicable to morality and politics."

Justice Iredell expressed the same view in a 1799 grand jury charge: "The liberty of the press … has converted barbarous nations into civilized ones—taught science to rear its head—enlarged the capacity—increased the comforts of private life—and, leading the banners of freedom, has extended her sway where her very name was unknown." Likewise, James Madison's 1799 Address of the General Assembly to the People of the Commonwealth of Virginia stated—in the middle of the discussion of the "liberty … of the press"—that "it is to the press mankind are indebted for having dispelled the clouds which long encompassed religion, for disclosing her genuine lustre, and disseminating her salutary doctrines."

Yet science, religion, morality, the arts, and civilization were mostly advanced by works written by people who were scientists, theologians, philosophers, or artists, not journalists or printers. It seems hard to imagine that Hume, Iredell, Madison, and the Continental Congress were speaking about a freedom of the press that extended only to newspapermen and excluded the Newtons, Luthers, Humes, Lockes, Jeffersons, and Madisons of the world.

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  1. Ron Paul agrees. Maybe rand does. too.

  2. My junior high civics class (1960s) gave me the impression that freedom of speech included soapbox oratory and freedom of press included mimeographed pamphlets cramked out in one’s basement. Like the free exchange of ideas is the light of a healthy body politick..

  3. “Justice Iredell expressed the same view in a 1799 grand jury charge: “The liberty of the press … has converted barbarous nations into civilized ones?taught science to rear its head?enlarged the capacity?increased the comforts of private life?and, leading the banners of freedom, has extended her sway where her very name was unknown.””

    If it’s relevant, here are some excerpts from Iredell’s charge.

    He’s encouraging the grand jurors to look into violations of the Sedition Act of 1798.

  4. I would think that the “press” now tends to mean only the news media, rather than the press-as-industry in general. I doubt that Popular Science or Car & Driver would get the same 1st Amendment deference in the courts as the New York Times or Washington Post.

    1. I hope you are mistaken, and have seen no reason to suppose you aren’t.

  5. Yet books and pamphlets, which were predominantly written by such authors, were routinely understood to be covered by the “freedom of the press,” which suggests that this liberty was under-stood as encompassing more than just the press-as-industry.

    This baffles me. What is the point? Are you merely suggesting the by now uncontroversial position that authors generally enjoy freedom of the press? Where is your previous (startling) assertion that institutional media have no special standing, because under originalist interpretation the 1A term, “the press,” does not refer to them. Surely you see that a claim that everyone enjoys freedom of the press is not logically exclusive of the notion that institutional media may enjoy particular aspects of press freedom which apply mostly to them, because only they typically employ those aspects of press practice.

    Professor Volokh, do you know of anyone who claims that 1A press freedom extends only to the institutional press? What wrongs are you trying to right?

    1. Note that the top of this article says it is part of a series. In the last article (“Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today”, Apr. 24), Prof. Volokh notes that many people think of the free press clause as protecting the institutional media. The first article in the series (“Do Ordinary Speakers Have Lesser First Amendment Rights Than Newspapers Do?”, Apr. 21) discusses an amicus brief in Minnesota he has submitted in a case where the lower court applied to the defendant a more lenient libel standard than the court would apply to a member of the institutional press.

      1. Many states have journalist shield laws that are limited in scope such that would violate the free press clause if challenged. For example, Florida’s shield law (Sect. 90.5015 Fla. Stat.) provides that (incorporating its definition of ‘news’): “A professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering [information of public concern relating to local, statewide, national, or worldwide issues or events].” The privilege can be overcome by a three-factor test.

        The definition of a ‘professional journalist’ in this act (Sect. 90.5015(1)(a) Fla. Stat.) specifically excludes book authors and only applies to salaried employees of or independent contractors of certain media (caps added for emphasis):

        “”Professional journalist” means a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought WHILE WORKING AS A SALARIED EMPLOYEE OF, OR INDEPENDENT CONTRACTOR FOR, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine. BOOK AUTHORS AND OTHERS WHO ARE NOT PROFESSIONAL JOURNALISTS, AS DEFINED IN THIS PARAGRAPH, ARE NOT INCLUDED IN THE PROVISIONS OF THIS SECTION.” (1/2)…

      2. (2/2) The exclusion of book authors an people who publish independently (ie. not salaried employee or contractor for the specified media) is unconstitutional, if a court considered the Free Press Clause to cover the press as a means of dissemination of speech. By ‘unconstitutional’, I mean it doesn’t stand up to strict scrutiny since it should be considered underinclusive.The distinction of salaried employees or independent contractors of certain media would also likely be an unconstitutional speaker-based speech restriction in violation of the Free Speech Clause (a la Citizens United v. FEC) and Equal Protection Clause (since distinctions when exercising fundamental rights is, generally, subject to strict scrutiny). Here again, I mean ‘unconstitutional’ as failing strict scrutiny since it is underinclusive.

        1. Thank you for that. It does help make Volokh’s most recent post more comprehensible. It also shows me I have some work to do to help professor Volokh understand why a legal distinction on behalf of institutional media can’t be ruled out without too greatly burdening freedom of the press.

          I also have a question about this, from you:

          The distinction of salaried employees or independent contractors of certain media would also likely be an unconstitutional speaker-based speech restriction in violation of the Free Speech Clause (a la Citizens United v. FEC) and Equal Protection Clause (since distinctions when exercising fundamental rights is, generally, subject to strict scrutiny).

          I’m having trouble following how being associated with a media organization, and being treated legally as a member of a media organization, can be a “speaker-based speech restriction.” Isn’t everyone at liberty to associate themselves with a media organization? If so, where is the distinction as to persons?

          Would you suggest likewise that courts make an unconstitutional distinction if they honor lawyer?client privilege only in cases involving actual attorneys, and not everyone? How about if states license per-share voting corporations, and permit the officers to disburse corporate money for political purposes, without even telling the shareholders? What if some non-officer employee does the same thing? Must a court allow that to avoid an unconstitutional speaker-based speech restriction?

  6. Andrew H., reflecting further on your helpful comment, I understand what Professor Volokh is getting at. He attempts to prove that “the press,” used as a metaphor in the 1A?and thus demonstrably current as a metaphor in the founding era?is nevertheless a metaphor applying only to a physical printing press, and not applying to Benjamin Franklin’s highly organized institutional press organization, stretching throughout the colonies and into the Caribbean. If Volokh allows the latter interpretation, then with the institutional media actually referred to in the Constitution, he can’t get a court using strict scrutiny to strip institutional media of press freedom.

    From that, the right interpretation of this series of threads is not that Professor Volokh is making a mistake because he is insufficiently grounded in academic history?true, but apparently not the explanatory factor I had supposed. Instead, the explanation is that Volokh is a right-wing 1A expert on a mission?to fetter press freedom selectively, by pruning out the bits which enable institutional news gathering and reporting. That opens the way for a politicized Supreme Court to empower the political branches to ravage institutional media with arrests and prosecutions for receiving secret information, and with laws demanding that reporters always disclose sources, or go to jail until they do.

    Surprising, from an ostensible press freedom defender.

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