Published on January 24, 2009
The roots of free speech
A whirlwind, 216-year tour fromQueen Elizabeth to Thomas Jefferson
Two great principles No prior restraint
Two great principles No prior restraint No penalty for reporting the truth
Two great principles No prior restraint No penalty for reporting the truth But how did we get from there to here?
Queen Elizabeth I Censorship is rampant Truth is never a defense Catholicism is considered a threat to the state
William Carter’s fate
John Milton Poet, Puritan, politician Opposed prior restraint His own work on divorce had been censored
The Areopagitica Licensing and censorship should be abolished
The Areopagitica Licensing and censorship should be abolished The truth will win out in a free exchange of ideas
The Areopagitica Licensing and censorship should be abolished The truth will win out in a free exchange of ideas Punishment could still be meted out after publication
Holmes and Milton “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market” — Holmes “Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” — Milton
The case of John Peter Zenger Royal Governor William Cosby sparked political opposition Zenger, a printer, approached to start an anti-Cosby newspaper
New-York Weekly Journal Attacked Cosby relentlessly Real force behind it was James Alexander Argued that truth should be a defense
From Cato’s Letters “The exposing therefore of public wickedness, as it is a duty which every man owes to truth and his country, can never be a libel in the nature of things.”
The burning of the Journal Zenger arrested in November 1734 Charged with seditious libel Tried in August 1735
Andrew Hamilton The original Philadelphia lawyer Argued that truth should be a defense in libel Told jury it could decide the law as well as the facts
Paul Starr “[T]he Zenger verdict vindicated the idea that the press could serve as a guardian of popular liberty by scrutinizing government.”
Isaiah Thomas Threatened with seditious libel prosecution in 1771 Invoked Zenger precedent Government dropped case
John Adams Sedition Act of 1798 a threat to free speech Recognized truth as a defense Overturned in 1964
James Madison Principal author of the First Amendment His Virginia Resolution was a ringing denunciation of seditious libel
Thomas Jefferson Preferred “newspapers without a government” to “a government without newspapers”
Thomas Jefferson Preferred “newspapers without a government” to “a government without newspapers” “I deplore ... the putrid state into which our newspapers have passed”
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