Free Speech

Evidence from Around the Framing: English Non-Newspaper Freedom-of-the-Press Cases

"Freedom of the press," as I've argued in earlier posts, was understood as protecting the freedom of all to use the printing press -- not just a freedom of the profession or industry that we might call "the press."


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 start going through the 15 early cases that show that courts and lawyers during the early years of the Republic understood the freedom of the press as extending to authors regardless of whether they were members of the press-as-industry. (For length reasons, this post will deal just with three English cases that were well-known in America; posts over the next couple of days will deal with the early American cases.) Though the American cases follow the drafting of the First Amendment by one to five decades, they are entirely consistent with the 1700s evidence discussed above. I have seen no reason to think there was some change from a press-as-industry understanding in the 1700s to a press-as-technology understanding as shown in those cases.

If anything, the common definition of "press" was more clearly focused on the press-as-technology in the late 1700s than it was in the 1820s and 1830s. The only possibly relevant definition of "press" in Samuel Johnson's 1755-1756 dictionary referred just to the printing press; the same was true of the 1790 edition and of Noah Webster's 1806 A Compendious Dictionary of the English Language, published in America. Noah Webster's 1828 dictionary, on the other hand, included both the technology and the industry as possible meanings of "press" (though the dictionary specifically defined the "liberty of the press" as a right of "every citizen" and as including the right to publish "books" and "pamphlets"). Likewise, the Oxford English Dictionary reports that the press-as-industry definition was just developing in the late 1700s and early 1800s, giving this as definition 3(d) of "press":

Newspapers, journals, and periodical literature collectively…. This use of the word appears to have originated in phrases such as the liberty of the press, to write for the press, to silence the press, etc., in which 'press' originally had sense 3c [The printing-press in operation, the work or function of the press; the art or practice of printing], but was gradually taken to mean the products of the printing press. Quotations before 1820 reflect the transition between these senses.

Yet despite that development, the 1820s and 1830s cases continued to treat the "freedom of the press" as being everyone's freedom to use the technology. If judges used such a meaning in the 1820s and 1830s, it would have been even more certainly used in 1791, when the alternative meaning of "press" to refer to the industry was just beginning to emerge.

[A.] Discussions of the Freedom of the Press as Protecting Non-Press-as-Industry Writers (England)

Twelve of the fifteen cases I discuss involve "freedom of the press" or "liberty of the press" being expressly discussed with regard to the rights of people who were not members of the press-as-industry. These were not printers, newspaper publishers, or editors, but rather people who wrote books, pamphlets, newspaper ads, or letters and other submissions to the editor.

Sometimes the authors won and sometimes they lost: the freedom of the press, even when it was implicated, was often not seen as providing particularly broad protection. But in all these cases, the lawyers and the judges were willing to discuss the non-press-as-industry defendants' rights under the freedom of the press. And there is no record of anyone arguing that the defendants lacked such rights because they were not members of the press-as-industry.

Of these twelve cases, three are English, but I include them because American judges and lawyers understood them as being relevant to American constitutional law—both as evidence of the English "liberty of the press" as inherited by Americans at the Framing, and as influences on post-Framing American legal developments. Justice Story's Commentaries on the Constitution of the United States, to give just one example, refers to only five cases in the "liberty of the press" section, and two of them are English (the Dean of St. Asaph's Case and Burdett, both discussed below).

The American freedom of the press was often seen as broader than the English common law definition, but I haven't seen sources suggesting that it was seen as narrower. And, as the discussion below shows, the English cases are entirely consistent with the American cases on the question that we are discussing.

[1.] Rex v. Shipley (Dean of St. Asaph's Case) (1784)

William Shipley, a minister who held the position of Dean of St. Asaph Cathedral, was prosecuted in 1784 for seditious libel for reprinting a pamphlet. (The pamphlet itself was also written by someone who was not a journalist or printer, William Jones, a lawyer and judge.) Thomas Erskine defended Shipley, arguing that the liberty of the press meant the jury had to determine whether the pamphlet was indeed libelous — an argument that assumed the liberty covered Shipley, who was not a member of the press-as-industry.

Lord Mansfield's opinion in Shipley rejected Erskine's argument, and followed the then-orthodox English rule that the judge would decide whether the publication was libelous. But Mansfield did not suggest that the liberty of the press was limited to members of the press-as-industry, which would have categorically excluded Shipley. Rather, Mansfield wrote (echoing Blackstone) that "[t]he liberty of the press consists in printing without any previous licence, subject to the consequences of law." Under this view, all publications—including those by non-press-as-industry authors such as Shipley—were protected only from prior restraints, and all could be punished by the law of seditious libel.

And Erskine's defense was known and approved of in America. Both the case and Erskine's arguments were cited extensively in People v. Croswell, the leading 1804 New York case that dealt with whether truth was a defense in libel cases. Erskine's position was quoted by the defense in the 1806 case United States v. Smith; though the reference was to the role of the jury generally, and not to free speech in particular, the detailed quotation of Erskine's speech to the jury suggests that the speech was known and respected in early America. Later, Justice Story mentioned the "celebrated defense of Mr. Erskine, on the trial of the Dean of St. Asaph" in the freedom of the press section of his 1833 Commentaries on the Constitution.

The quotations gave no hint that Erskine's use of the liberty of the press to defend a churchman rather than a newspaperman was at all questionable. Rather, they seem consistent with the American understanding of the right's being a right of "every citizen."

[2.] Rex v. Rowan (1794)

Archibald Hamilton Rowan was an Irish radical politician and one of the leaders of the Society of United Irishmen. The Society published a 1500-word broadside, titled "An Address to the Volunteers of Ireland"; Rowan distributed it, which led to his being prosecuted for seditious libel.

Rowan was a politician, not an editor or a printer. Nonetheless, both the prosecutors and the defense counsel, John Philpot Curran, told the jury that the case touched on the "freedom of the press" or the "liberty of the press"; their disagreement was about whether Rowan's actions were an abuse of the freedom, and thus punishable. As in Shipley, the liberty of the press was apparently seen as applying to all, not just to members of the press-as-industry.

Rowan's case was well publicized in America. A full-length report of the trial was reprinted in New York, and advertised both there and in Baltimore. The trial was discussed in newspapers, as was Rowan's imprisonment and escape. Shortly after his escape, Rowan fled to America, where he received some attention from fellow democrats and became an acquaintance of Thomas Jefferson. The case was remembered in later years as well: Curran's speech in Rowan's defense, which included discussion of the liberty of the press, was reprinted in America in separate collections, in 1805, 1807, and 1811, and the Rowan trial was mentioned by prosecutor William Wirt in Aaron Burr's 1808 trial for treason.

[3.] Rex v. Burdett (1820)

Rex v. Burdett stemmed from a letter to the editor written by Sir Francis Burdett, a nobleman and reformist politician rather than a printer or journalist. Though Burdett was not a member of the press-as-industry, the presiding judge referred to the "liberty of the press" four times in his opinion, and twice in his instructions to the jury. The judge's opinion also stressed that "the liberty of the press" means that "every man ought to be permitted to instruct his fellow subjects." The prosecutor mentioned the "liberty of the press" as well.

Burdett was well-known in America. It was cited as to "liberty of the press" in Chancellor Kent's 1827 Commentaries on American Law and in Joseph Story's 1833 Commentaries on the Constitution, as to venue in libel cases in Commonwealth v. Blanding (1825), and in a general note on libel law following People v. Simons (1823) [which I will discuss in a later post].

NEXT: Burning Widows and Other Things That Even "Multicultural" Americans Shouldn't Tolerate

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  1. Twelve of the fifteen cases I discuss involve “freedom of the press” or “liberty of the press” being expressly discussed with regard to the rights of people who were not members of the press-as-industry.

    I’m not sure how useful this all is because those who would in some fashion protect “the press as industry” (including by discretionary protections that given them special rights that EV in the past has noted is not his immediate concern, but to me seems quite relevant) do not really deny that the lone pamphleteer is protected too. Some core liberty (such as freedom from prior restraints) is general.

    If something is “newspaper ads, or letters and other submissions to the editor,” sounds like that is pretty close to press as industry too. It is after all in a newspaper.

    There is a debate that there is some aspect of the freedom of the press that is some fashion — at least around the edges or which allows certain special treatment that in other contexts could be treated as wrongful special treatment among speakers [e.g., immunity from prosecution for some if they don’t testify vs. a prior restraint being blocked only for that group]. Some “press as institution” aspect that goes beyond technology.

    1. Well, Justice Stevens’ view in Citizens United was precisely that (1) people who produce one-off or occasional videos — or who pay for political ads on television or on billboards — aren’t protected by the First Amendment (so that, for instance, the law can ban corporations from engaging in such speech) about candidates, while (2) people who publish newspapers are so protected (which is why he dismissed the majority’s claims that his view would allow bans on newspaper corporations endorsing candidates).

      Likewise, the Minnesota court decision that indirectly led me to put up this series of posts involved the court applying Minnesota law to deny full First Amendment protection to a woman who wrote a one-off article, and a nonprofit that published it — the modern equivalent of the lone pamphleteer. Other courts (though, thankfully, a small minority) have taken the same view, which is what my article criticizes.

      1. Except on your say-so, what puts the colonial era “lone pamphleteer” outside the institutional press? With few exceptions, a pamphleteer would use reliance on the institutional aspects of the colonial institutional press, or nothing would come of his authorship. To put the comparison to the present on a valid footing, you have to suppose that the modern pamphleteer is a blogger with his computer being his own printing press?while ignoring that you can’t publish with your computer without access to the internet, history’s biggest institutional press. Even the exceptions disprove your comparison, because those would, in faith to your comparison, have been people who worked in print shops, permitting them to publish without assistance. But in full historical context, working in a print shop generally made such a person a member of the institutional press.

      2. Corporations are people. Are you Mitt Romney?

        As Stevens noted, Hillary: The Movie could have been produced and paid for in a range of ways. People were not unprotected from making videos, ads or billboards except in a certain specific fashion, particularly that including corporate funds in a certain fashion. How “precisely” is the person not protected by the 1A?

        I already said that there was a debate that “press as institution” could have additional rights, such as being an exception to campaign regulations [or be able to be immune from testifying in certain cases or get special treatment when seated at court or ..] but the sole individual here clearly has a broad range of rights too. They are not uncovered at all. The lone pamphleteer is protected.

        “Lesser” doesn’t mean they have no rights at all. Some people being able to avoid prison for not testify per discretionary state press privileges isn’t even your concern here. So, apparently the institutional press at times getting special rights while the individual still gets a basic core of protection isn’t that horrible.

        I think the matter is one of looking at the facts as a whole and individual cases might be complicated, including individuals who act as reporters as compared to let’s say individuals who merely say something that is protected but along the edges (such as libel/slander) where the rules might be different if an institutional press of some sort provides some sort of oversight function etc.

  2. Professor Volokh, using your “Evidence from around the . . . (fill in the blank)” method of historical reasoning, it would be easy to pile up citations from England to say the framers intended to incorporate the Stamp Act in the Constitution?or if not the Act itself, at least its principle that the institutional press is a threat to be kept in fetters by government. We know how that sat with the founders, because they rebelled against it.

    Indeed, your method of historical reasoning makes it possible to amass citations for either X, or not-X, for every value of X which signifies controversy. That may be okay for legal history; it’s kind of like what happen in court. For academic history, you need a different method.

    Academic historians love to debate among themselves about questions of historiography?the science, or art, or whatever it is, that attempts to limit historical reasoning to methods sound enough to exclude as many bogus outcomes as possible. I suggest you get in touch with a first rate academic historian of the early American era?Jill Lepore at Harvard comes to mind, but practically anyone with tenure at your own university would do?and ask for a good title on historiography.

    Until then, for a simple method to keep academic reasoning about the founding on track, limit yourself to what you can prove by referencing the founders themselves, in the time frame preceding ratification, but not after it.

    1. Did you read the law review article this series is based on? (Hint: It’s the second link in the article.) If you even only looked at the index at the beginning (which only takes a few seconds), you’d see that this is only a portion of a much longer analysis that approaches the question (is Free Press Clause mean press as industry or press as technology) from several angles and from the time of the founding to the present. And if you just went a little further and read the intro and conclusion, you’d find your attack on Prof. Volokh’s analytical skills to be meritless. The last few pages of the conclusion discuss how to analyze the proper understanding of the Free Press Clause, with the very last sentence of the article concluding: “The goal of this Article is simply to say that an argument for a press-as-industry interpretation of the Free Press Clause must rely on something other than original meaning, text, purpose, tradition, or precedent.” I’d say something snarky about your comment, but if I were candid, I’d probably be banned for incivility.

      1. *By “is Free Press Clause mean press as industry or press as technology”, I meant “does ‘press’ in the Free Speech Clause refer to the press as an industry or as a technology”. Oops.

      2. Others, like Sonja West, challenge him on the “original meaning, text, purpose, tradition, or precedent” point.

        But, I forgive some who don’t read law review articles (82 pages or otherwise) when reading blogs, often reading multiple blogs along with other things during their days. Blogs provide a thumbnail sketch of what the position is and allows people with less time and so forth to get a gist. This does at times lead to some confusion, but questions posed and answered can help them out some.

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