Like Freedom of Religion and Freedom of Speech, in the United States the concept of Freedom of the Press as it developed has been uniquely American. Along with free speech for the general population, it is surely the source of what has become known as American Exceptionalism.
American Exceptionalism
Alexis de Tocqueville originally referred to the United States as an “exceptional” country in 1840. His references and analyses dwell on many special aspects of the American situation regarding location and resources,[1] driving the people to practicality over art or science. The phrase “American Exceptionalism” actually was coined in the 1920’s by Joseph Stalin in a dispute as to why the United States did not fit with the Marxist view of history.[2]
Though de Tocqueville and Stalin were complimentary and derisive respectively, a discussion of “American Exceptionalism” built around certain accidents of history and geography miss the point.[3] The ideas behind the First Amendment’s clauses limiting government action in the areas of the speech and press were uniquely American. The First Amendment principle as expressed in the Declaration of Independence that people are sovereign with a Natural Law right to express their thoughts both personally and institutionally was exceptional. [4]
Freedom of the Press in England
Though it is often referred to as a source for the American Bill of Rights, the English Bill of Rights of 1689 made no provisions for freedom of the press. There was a long history of licensing of the press in England. It had been done by kings. With the rise of Parliamentary sovereignty, it was done by Parliament dating from 1643, with provisions for pre-publication censorship of the press.
Besides licensing laws that gave the English government control over who could operate a printing press, as respect to the government, there was the common law crime of seditious libel. A seditious libel was a printed statement that “brings into hatred or contempt” the monarch or heirs, or the government, or the administration of justice.[5] Seditious libel also included incitement to people to change any matter of Church or State established by law (except by lawful means), or the promotion of discontent among British subjects. The potential penalty for printing such material was life in prison.
The exceptional American concept that a free press was a necessary element of representative government was not borne of English tradition.[6]
Freedom of the Press: Natural Incident of Representative Government
The English limitations on the press were inconsistent with the developing theories of American government. The theories started with the premises in the Declaration of Independence and natural outcome resulted in the necessity of a press unrestricted by government:
1 Every individual is sovereign over his own person with natural inalienable rights.
2 People join together and form governments to protect those rights.
3 Management of government of a large society is best done by representation and granting limited power to the government for the purpose of protecting rights.
4 Ultimately the individual through his representatives retains sovereignty over the government.
5 As a sovereign, the individual remains equal to his representative he retains a freedom of speech equal to the representative.
6 In a small community, an individual is likely to know his representative and have the ability to make informed electoral decisions.
7 As communities grow ever larger, and elected officials represent more people, having personal knowledge to make informed decisions regarding representation becomes more difficult.
8 The dissemination of knowledge among large communities is best achieved by a free and open press.
9 Freedom of the press is an institutional necessity to achieve a properly representative government.
From the Natural Law premise of individual sovereignty freedom of the press becomes an intuitive principal. This progression of thought resulted in these words in the First Amendment and added to the Constitution in 1791:
“Congress shall make no law …abridging the freedom … of the press…”
This was an exceptional doctrine and the basis for American Exceptionalism. It was not the result of Americans living on the frontier as de Tocqueville described. It was the result of the underlying philosophy that served as the basis for America.
The Sedition Act of 1798
Although the First Amendment was ratified in 1791, the concept of seditious libel remained alive in some places. The Sedition Act of 1798 was passed while the Federalists controlled Congress and John Adams was in the White House. The Act made the following activity a crime, with a potential penalty of five years in prison:
“To write, print, utter or publish, or cause it to be done, or assist in it, any false, scandalous, and malicious writing against the government of the United States, or either House of Congress, or the President, with intent to defame, or bring either into contempt or disrepute, or to excite against either the hatred of the people of the United States…”
The Act mirrored much of British “seditious libel” law, but did add an American concept of “truth as a defense”. James Madison understood that this law did not comport with the First Amendment:
“It would seem a mockery to say that no laws should be passed for preventing publications from being made, but that laws might be passed for punishing them in case they should be made.”
Passage of the Act resulted in a flurry of publications regarding the true meaning of Freedom of the Press in a republic. Among the most influential was
Tunis Wortman’s A Treatise Concerning Political Enquiry, and the Liberty of the Press. Wortman, Madison, Jefferson[7] and others expounded on the First Amendment’s intended broad press protections, and the unconstitutional nature of The Act.
During the next two years 25 people were arrested for publishing statements in violation of the law. Eleven went to trial and ten were convicted. The Act was the central issue in the election of 1800. John Adams and the Federalists were thrown out of office. Thomas Jefferson became president, and pardoned all those convicted under the Act. The American people by virtue of their vote had found the Act unconstitutional.
The Supreme Court and Freedom of the Press
The first case involving press freedom came before the US Supreme Court in 1931[8]. In Near v. Minnesota, and overturned a Minnesota law that classified certain types of publication as a nuisance. Since then, the Court has consistently placed a high premium on press freedom, with jurisprudence consistent with the writers of 1798-1800.
The Supreme Court’s cases, from Near to NY Times v. Sullivan[9] to the Pentagon Papers,[10] have been very solicitous of the rights of the press. The court has recognized the press function in a free republic to be critical and given institutional protections that recognize the press as almost a fourth branch of government. These protections are philosophically in line with those of Madison, Jefferson and the opponents of the Sedition Act of 1798.
Freedom of the Press and American Exceptionalism
When people speak of “American Exceptionalism”, it is most often in reference to ideas such as “Manifest Destiny”, the conquering of the West, “The Monroe Doctrine” and other historical matters which have brought the United States to a position of world leadership. Even de Tocqueville’s references were related to “practicality” and the American frontier. These thoughts miss the point.
The basic element of the exceptional nature of America is the philosophy of individual sovereignty that leads to principles like “Freedom of the Press”. It is that initial principle that leads to all else.
First Amendment, Freedom of the Press Discussion with Fred Talbott
[1] Alexis de Tocqueville, Democracy in America
[2] Which Stalin vehemently disputed.
[3] Leaders like Ronald Reagan and Newt Gingrich have employed the phrase to denote America’s special place in human history.
[4] It is the idea that an individual is naturally sovereign, with a right to censor the government and not the reverse that was truly revolutionary.
[5] It did not matter if the statement were true. In fact, true statements which brought hatred or contempt to the government were likely to receive worse penalties. Truth as a defense to seditious libel originated in the colonies in the trial of John Peter Zenger in 1735. His attorney, Andrew Hamilton of Philadelphia, argued directly to the jury that what Mr. Zenger had published about the colonial governor was true and Zenger should not be convicted. Despite truth not being a defense for Mr. Zenger in 1735, the jury found him not guilty. The Zenger trial left a large legacy. It set the stage for truth becoming a defense to charges of libel. It proved the importance of juries as protections for citizens from the government (juries are mentioned five times in the original Constitution and Bill of Rights). On a lighter note, Mr. Hamilton did such a fine job for Mr. Zenger, the trial gave us a phrase remaining in use today: “Philadelphia lawyer”.
[6] Nor traditions elsewhere, since other references to press freedom in other countries were at the sufferance of the sovereign.
[7] The Virginia and Kentucky Resolutions opposing the Act and putting forth theories of Nullification were authored by Madison and Jefferson respectively.
[8] The court did address free speech issues earlier in the matters of Abrams v. United States (1919) and Debs v. United States (1919). These matters did not directly involve the press, but individuals. They did uphold provisions restricting speech in the Espionage Act and its amendments involving sedition. It is unlikely those provisions would be upheld today given the development of speech law since, but in the “terrorism” atmosphere that exists in the early 21st century, prediction is difficult.
[9] Holding that public officials suing a press publication for libel must prove “actual malice”, a very high standard protecting most publications from suit.
[10] Holding that the government may not get an injunction to prevent publication of materials by the press, even if the government alleges issues of national security.
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