FAN 174 (First Amendment News) Special Issue on Legal History — New article “reorients our understanding of the history of speech and press freedoms”
According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean? A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.
— Cass Sunstein, The Originalism Blog
History forever haunts us. Even if it did not, there is always that temptation to look into the rear-view mirror to catch a fleeting glimpse of the world of the dead. Even some of the great who wrote about the dead are themselves now dead. Remember this constitutional historian?
- Leonard Levy, Emergence of a Free Press (1985) (Levy was a Pulitzer Prize-winning historian)
- Leonard Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression (1963)
- For a critical reply, see David A. Anderson, The Origins of the Press Clause, UCLA L. Rev. (1982)
Still, the living continue to dig up the dead and tell their stories . . . as best they can frame them. For example,
- Stephen D. Solomon, Revolutionary Dissent: How the Founding Generation Created Freedom of Speech (2016)
- Phillip I. Blumberg, Repressive Jurisprudence in the Early American Republic: The First Amendment and the Legacy of English Law (2010)
- Geoffrey Stone, Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (2004)
Of course, there is more, much more. That said, there’s a new player in the First-Amendment-history town; he is Professor Jud Campbell and he has an impressive new article in the Yale Law Journal. It is titled
ABSTRACT. The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.
This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.
This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.
Newly Posted Historial Documents
- Father of Candor Anticipated New York Times v. Sullivan Over 250 Years Ago
- Cincinnatus to James Wilson, 1787
- Essays – John Milton Areopagitica, 1644
- Essays – Samuel Adams as Populus
- Letters – Thomas Jefferson to Edward Carrington
- Thomas Jefferson’s First Inaugural Address
Related: Sean Stroh, Carter Journalism Institute Launches First Amendment Watch, Editor & Publisher, Jan. 10, 2018
First Amendment Hero — Judge Murray I. Gurfein
This from Jeffrey S. Trachtman over at the New York Law Journal:
“The Post” is a well-crafted, old-school newspaper drama with a timely message about the crucial role of a fearless free press. But it misses the chance to rediscover a forgotten First Amendment hero—the late Judge Murray I. Gurfein. . . .
The movie does Judge Gurfein a disservice by mentioning only the TRO and omitting his bold First Amendment ruling. Judge Gurfein was not the only judge to do the right thing here, but he led the way—standing up, in his first week on the job, to the president who had just appointed him. It was an act of political courage that still inspires today, with our independent judiciary as besieged as our free press.
So munch your popcorn and cheer Kay Graham and Ben Bradlee, but don’t forget the bit players who also deserve applause—including a lone rookie judge with the intellectual honesty and political guts to say “no” to authoritarian power. We need more like him today.
→ Robert McFadden, Judge M.I. Gurfein, Who Allowed Pentagon Papers’ Publication, Dies, New York Times, Dec. 18, 1979
- “The Post,” Meryl Streep and Tom Hanks—What They Teach Us About Freedom of the Press, First Amendment Watch (Dec. 20, 2017)
- Jake Kobrick, The Pentagon Papers in the Federal Courts, American Bar Association / Federal Judicial Center (2014)
Just-Released Book on Masses Lawyer
→ Eric Easton, Defending the Masses: A Progressive Lawyer’s Battles for Free Speech (2018)
Abstract: Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.
Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin’s progressive senator Robert La Follette since their law partnership as young men, Roe defended “Fighting Bob” when the Senate tried to expel him for opposing America’s entry into World War I.
In articulating and upholding Americans’ fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.
Forthcoming Book on Anthony Comstock
- Amy Werbel, Lust on Trial Censorship and the Rise of American Obscenity in the Age of Anthony Comstock (Columbia University Press, April 2018)
Abstract: Anthony Comstock was America’s first professional censor. From 1873 to 1915, as Secretary of the New York Society for the Suppression of Vice, Comstock led a spirited crusade against lasciviousness, salaciousness, and obscenity that resulted in the confiscation and incineration of more than three million pictures, postcards, and books he personally judged to be obscene. But as Amy Werbel shows in this rich cultural and social history, Comstock’s campaign to rid America of vice in fact led to greater acceptance of the materials he deemed objectionable, offering a cautionary tale about the unintended consequences of censorship.
In Lust on Trial, Werbel provides a detailed and colorful journey through Comstock’s career that doubles as a new history of post-Civil War America’s risqué visual and sexual culture. Born into a puritanical New England community, Anthony Comstock moved to New York in 1868 armed with his Christian faith and a burning desire to rid the city of vice. Werbel describes how Comstock’s raids shaped New York City and American culture through his obsession with the prevention of lust by means of censorship, and how his restrictions provided an impetus for the increased circulation and explicitness of “obscene” materials. By opposing women who preached sexual liberation and empowerment, suppressing contraceptives, and restricting artistic expression, Comstock drew the ire of civil liberties advocates, inspiring more open attitudes toward sexual and creative freedom and more sophisticated legal defenses. Drawing on material culture high and low, courtroom transcripts, and numerous examples of the “obscenities” Comstock seized, Lust on Trial provides fresh insights into Comstock’s actions and motivations, the sexual habits of Americans during his era, and the complicated relationship between law and cultural change.
Forthcoming Book on Hollywood Blacklisting
- Larry Dane Brimmer, Blacklisted!: Hollywood, the Cold War, and the First Amendment (Calkins Creek, October 9, 2018)
So to Speak Podcast Interview with Prof. Healy
First Amendment Library Timelines
- The History of Free Speech
- The History of the Alien, Sedition, Espionage, & Related Acts
- The History of Film Censorship
- The History of Campaign Finance
Anthony Lewis C-SPAN Interviews (1991 & 2008)
- Re his then new book Make No Law (YouTube video here)
- After Words with Anthony Lewis (interviewed by Ronald Collins) C-SPAN, Feb. 11, 2008
Interview with Chris Finan re his then new book From the Palmer Raids to the Patriot Act A History of The Fight for Free Speech in America (Woodrow Wilson Center, Oct. 1, 2013)