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”