Almost 250 years after America’s founding, lawmakers and the Supreme Court are still trying to strike a balance between the practicalities of running a nation and the spirit of that deeply important three-word phrase.
It’s astounding that the phrase was even included in the Bill of Rights at all. It was really bold for the new nation to value its lofty democratic ideals over the stability of its government, since every ruler up to this point had considered censorship a matter of course for their own well-being.
However, history classes often make it seem like the founders of America dreamed up the concept out of nowhere, and that minimizes the fascinating history of freedom of the press in the English-speaking world.
(Since I bet all y’all are preoccupied with barbecue, I’ve done my best to make this one as concise and entertaining as possible. Enjoy!)
The Printing Press
Around the time that Gutenberg invented the printing press, the rulers of Europe were both political and religious leaders, and therefore many types of new ideas were a threat to their power (and their heads). In modern secular America, very little speech is viewed as a real threat to the stability of the nation, but in Gutenberg’s day, even agnostic thinking was very, very dangerous. Therefore, the printing press served to really upset kings, who then kicked a bunch of people out of their country.
In England, printers were required to be licensed until 1694, which served as a way for the government to control what they published. Even after the law was repealed, printers were often charged with “seditious libel” for printing anything that might harm the nation, and therefore they often self-censored.
John Milton, the same guy who wrote Paradise Lost, wrote a pamphlet that advocated for total press freedom, because he believed that, like in a free market, the best and most truthful ideas would win out. Milton’s popularity meant that American leaders were undoubtedly familiar with this work.
The Zenger Trial
Around 1735, a very popular interim Governor in New York named Morris got replaced by William Cosby from England. Cosby started behaving poorly according to his citizens, and a group called the Morrisites hired a printer named Zenger to publish their anti-Cosby newspaper. After a few unsuccessful attempts, Cosby had Zenger arrested. The Morrisites found a couple of quality lawyers but Cosby, in a true dick move, disbarred them right before the trial. Andrew Hamilton (not Alexander!) volunteered to defend him, and gave the jury a stunning ending statement that continues to affect rulings today.
When someone was charged with seditious libel, all the prosecution had to do was prove that the person in question had published material that would harm someone else (or something, like the government as a whole). Hamilton argued that the jury should take into account whether Zenger had published anything false. This set an important precedent, and helped clarify freedom of the press for the new nation. And Cosby probably ended up pretty upset.
When the colonies split from the new nation, each one drafted its own constitution and many of them not only set down how the state was to function in a practical sense, but in the anti-British frenzy, also included “inalienable rights” that lawmakers couldn’t restrict.
Virginia was one of the first colonies to get to work, and the effort was headed by George Mason, who was strongly in favor of a free press. Most of the other states used his work as a blueprint, and therefore freedom of the press got included in many state constitutions.
After the Constitution was drafted, the states refused to ratify it unless they included a Bill of Rights, thereby cementing freedom of the press into the structure of our nation.
Happy Fourth of July!