The Free and Open Press: The Founding of American Democratic Press Liberty
By Robert Martin
August 31, 2001
Writing in the wake of the McCarthy era, James Morton Smith concluded his monumental study of the Sedition Act controversy (1798-1800) and its struggles over press liberty with these words from novelist John Dos Passos:
In times of change and danger when there is a quicksand of fear under men's reasoning, a sense of continuity with generations gone before can stretch like a lifeline across the scary present.
Happily, the specter of McCarthyism has long since been dispelled. Yet for many advocates of free expression, the present has been scary. Certainly the last two decades of the twentieth century have been a time of great challenges to settled ways of thinking, causing "much agony and soul-searching." From pornography and "hate speech" to the right to privacy and the public's "right to know," a series of controversies have flared up, and Americans have responded by renewing their free speech dialogue in public fora as diverse as local newspapers and law reviews, lunch counters and the Supreme Court bar.
This dialogue has not been idle chatter. Free speech is crucial to American democracy, most notably in its manifestation as the foundation of the "fourth branch" of government. More important still, it is fundamental to our very way of thinking about politics; increasingly, significant matters of public (and even private) affairs become disputes over freedom of expression.
These important debates over press liberty are critical episodes in America's continuing discussion about the competing priorities of individual rights and community concerns. Broadly, such issues animate much of current democratic theory. More specifically, however, the tensions they reveal are central and long-standing features of the American free speech tradition. In contemporary jurisprudence, this debate over competing priorities is seen in the differences between those who regard individual liberty as the central value of the First Amendment and those who contend that democratic self-government is paramount. In fact, as constitutional scholar Robert C. Post explains, "this tension is internal to the domain of democracy." The laws and norms that are intended to make democratic discourse possible are "intrinsically contestable," always open to the criticism that they overly stress either social cohesion or individual autonomy, both of which are "necessary for democratic legitimacy."
These and related tensions, I contend, have been with us from the first major episode of Anglophone conflict over press liberty. More importantly, in our very efforts to address these controversies--in the repeated calls for a "free and open debate"--we employ the distinctive language of the "free and open press" that reflects the persistence of these tensions. It was the early American concept of the "free and open press" that would at first unite, and later bifurcate, the potentially contradictory demands of community and individual. Instead of tackling recent press issues, then, I trace this contradictory discourse from its emergence through to the very founding of our current concept of democratic press liberty.
The Founding of Modern, Democratic Press Liberty
"I thank God, there are no free schools nor printing, and I hope we shall not have these hundred years," Virginia Governor Sir William Berkeley wrote of his colony to the House of Lords in 1671. "For learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both!" A century and a quarter later a fellow Virginian, James Madison, would write his national legislature in a remarkably different spirit, declaring that "to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity, over error and oppression."
The considerable rhetorical chasm here between Berkeley and Madison is reflective of a theoretical divide that is deeper still. Berkeley, for example, would certainly have agreed with the position taken formally by his successor, Lord Culpeper, prohibiting any printing without prior royal approval and proper license. Madison, to the contrary, maintained that freedom of the press was necessary, and he further required "that it should be exempt, not only from previous restraint by the executive1/4but from legislative restraint also; and this exemption, to be effectual, must be an exemption not only from the previous inspection of licensers, but from the subsequent penalty of laws."
The extreme divergence of these statements reflects the reformation in political discourse that culminated in the founding of the American tradition of press liberty. The striking conceptual shift that took place involved not simply matters of definition, but also competing understandings and justifications of free expression. The transformation cut to the very core of Americans' evolving theories concerning government, the public sphere, and—ultimately—democracy. The primary aim of this book is to explain these evolutions through a conceptual history of press liberty. This conceptual history begins by examining the legacy of some of the earliest debates over freedom of the press in England and concludes by analyzing the pivotal political and theoretical struggle over the Sedition Act of 1798.
As I will explain shortly, the extensive secondary literature on this important topic has been polarized by a contentious debate that has raged for almost half a century. One side tends to overemphasize eighteenth-century efforts to suppress the expanding public sphere of early America, while the other has overreacted by focusing almost exclusively on "libertarian" rhetoric and practices. Predictably, the results of this exchange have been mixed. One outcome is a scattered but rich body of research that has been a crucial resource for this study. Another outcome, however, is a pair of competing interpretations, neither of which helps us understand the sound evidence uncovered by the other side. The burden of this book, then, is to furnish a new conceptual framework that explains both bodies of evidence.
That conceptual framework is the ambivalent tradition of the "free and open press." Praising the freedom of political expression, the colonists of North America frequently lauded the "free and open press," by which they referred generally to the public sphere of unhampered political discourse. Up to the 1760s, press liberty was seen as a unified concept even though it comprised a number of separate claims. Increasingly during the first half of the eighteenth century, these various claims coalesced into two strains of argument that I call free press doctrine and open press doctrine (drawing the terms from mid-century colonial discourse). Free press doctrine lionized the press as the prime defender of public liberty in its role as a bulwark against governmental tyranny. Open press doctrine, on the other hand, stressed the individual right of every man to air his sentiments for all to consider, regardless of his political perspective or the consequences for the people's liberty.
The distinction between these doctrines was only brought to the surface in the pre-Revolutionary crisis of the 1760s and '70s, and was probably clear even then to only a few colonists. Nevertheless, I seize on it and expand on it, employing it in a more systematic way than the colonists ever did. (For example, I will use the terms free press and open press exclusively to refer to these doctrines. ) I take the liberty of employing these terms retrospectively precisely because we will then be able to understand a legacy of both suppression and liberation. For, as we shall see, the free press and the open press could be complementary (and relatively libertarian), as when a printer favoring the nascent patriot movement published a critique of a Tory administration (thus defending public liberty by airing his sentiments). But the same printer could just as easily suppress a Tory response by contradicting open press values and trumping them with the free press claim that the danger to public liberty would be too great if he opened his paper to tyrannical efforts "calculated to inflame and divide."
This framework, then, can explain both bodies of evidence uncovered by the secondary literature. But our press liberty tradition continues to exhibit contradictory impulses toward liberation and suppression. In important ways these impulses are the legacy of the free and open press of the eighteenth century. Thus, in providing this historical analysis, I further hope to inform current debates over free speech by revealing the essential ambivalence that continues to plague the very foundation of modern American democratic press liberty.
Though the main substantive focus of this book is press liberty, analyzing the founding stages of this fundamental debate suggests a great deal concerning the character of American political thought more generally. The recurring rhetorical controversy over press liberty acts as a particularly illuminating window into early American political discourse precisely because it allows the analyst to view, often all at once, a great many crucial elements of that developing body of thought. The philosophical yet practical debates over press liberty involved questions concerning individual rights, the public good, liberty, commerce, sovereignty and the nature of the public sphere; ultimately, the issue of press freedom forced early Americans to reexamine and reconceive the very nature of democracy. Capitalizing on this revealing perspective, this book also seeks to inform and advance current scholarship on the character of early American political discourse.
Contested Academic Terrain
Given contemporary battles over press liberty such as those concerning pornography and racist "hate speech," it is perhaps not surprising that the historiography of eighteenth-century American free press discourse is rife with debate. One press liberty historian observes that those new to the topic "may feel as if they wandered into the middle of an argument. They have." Actually, it is worse than that. Investigating the conceptual history of American press liberty in its founding stages, one immediately and unavoidably finds oneself amidst not one, but two enduring scholarly debates. The first controversy involves the history of press freedom and the second regards early American political thought and culture more generally. In both cases, the way I examine and relate this history serves to undermine and recast these debates.
Press Liberty or Suppression?
One of the heated arguments we have wandered into began in earnest about 40 years ago, though it has roots going back to much earlier in the century. But by 1950 or so, the weight of informed opinion--shared by most legal scholars and Supreme Court Justices--held that the American Revolutionaries and Framers intentionally established a full freedom of expression by wiping out the crime of seditious libel. Seditious libel, though a "damnably difficult concept to define," refers generally to the crime of publishing criticism of the government, its men or measures. Thus Zechariah Chafee, a preeminent free speech scholar, wrote in 1941 that the First Amendment was intended to make "prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America."
Enter legal historian Leonard W. Levy. His highly influential 1960 book, Legacy of Suppression: Freedom of Speech and Press in Early American History, provided "a useful antidote to saccharine, knee-jerking patriotic versions" of the Framers and free speech that were espoused--without much evidence or investigation--by Chafee and virtually all legal scholars. Against that orthodox belief in the liberating intentions of the Framers, Levy's history presented a radical revisionism. Throughout Legacy, Levy offered rich details supporting his claim that eighteenth-century "American experience with freedom of political expression was as slight as the theoretical inheritance was narrow." Early Americans simply accepted and lived by the traditional view, codified most influentially by English jurist Sir William Blackstone, that freedom of expression meant freedom from prior restraint, not subsequent punishment. Levy's view that the Framers left us with a Blackstonian "legacy of suppression" went on to become the new orthodoxy, even appearing in the landmark free speech ruling, New York Times Co. v Sullivan (1964).
Nevertheless, Legacy brought on a storm of criticism. Perhaps most damning was the observation, made first by historian Merrill Jensen and subsequently documented by many, that the public discourse of early America was rife with seditious libel. Then, in the early 1980s, major law review essays challenged Levy on the theoretical as well as the practical evidence and presented detailed documentation undermining his Blackstonian interpretation of the First Amendment. Levy defended Legacy, but even then a revision was in the works.
"I am revising myself," Levy announced in the Preface to Emergence of Free Press (1985), the "revised and enlarged edition" of Legacy. After admitting that he wrote Legacy in anger and in order to spite liberals who did not want him to publish his revisionist history, Levy makes a number of more substantive confessions. He admits that in Legacy he "ignored" evidence of "nearly epidemic" seditious libel and was thus "wrong" in claiming that American experience with press liberty was "slight." He goes on to concede that it was misleading to suggest that the Framers intended the First Amendment to provide only freedom from prior restraint. Perhaps most importantly for our purposes, Levy now recognizes that many in the Framing generation saw the press as a fourth branch of government and realized that a robust freedom of political expression was necessary for genuine popular sovereignty.
"In the end," however, "Levy is unable to decide how much of Legacy to repudiate." Indeed, Levy sticks to his guns on a number of important claims. First, his "principal thesis remains unchanged:" "the revolutionary generation did not seek to wipe out the core idea of seditious libel, that the government may be criminally assaulted by mere words." Second, and significantly for our conceptual history, Levy still holds that "the theory of freedom of political expression remained quite narrow until 1798, except for a few aberrant statements." And though he now concedes that early Americans had plenty of practical experience with free political criticism, Levy insists that such practice is irrelevant to his theoretical inquiry.
To those who find stout roots of American free speech libertarianism in the eighteenth century, Levy's dismissal of the practice and belittling of the theory of press liberty has left Emergence woefully one-sided. And indeed it is. As these "libertarian" interpreters have recently shown, Levy's revision--despite its own solid evidence--still leaves a great deal of data unexplained. David Rabban, for example, in his lengthy and detailed critique of Emergence, has pointed to a number of fundamental weaknesses in Levy's approach. First, as we have seen, Levy simply refuses to explain the reality of a "savage," unfettered press. This evidence "amazes" him and leaves him "puzzled," yet he maintains that neither the lack of libel trials nor the reality of an unbounded press illuminates the meaning of freedom of the press. "Levy's refusal to reflect on the paradoxes between practice and theory constitutes a basic weakness of his analysis."
Though it may be true that the practice of press freedom does not directly or simply explain the concept of press liberty, it does help us understand exactly what manner of press freedom historical agents took their repeated justifications to be legitimating. Accordingly, I attempt in this book to attend more carefully to the peculiar context of legal change and the critical interdependence between theory and practice; thus, we may hope to achieve a better grasp of subtle but significant theoretical developments prior to 1798.
A second and central point for Rabban is that Levy's grasp of theoretical developments before the Sedition Act controversy is also impaired by the standard he applies to theories of press freedom. Committed to demonstrating that no trace of our contemporary understanding of press liberty emerged before 1798, Levy concentrates exclusively on our current definition of freedom of the press, which rejects the notion of seditious libel. This standard, however, is a singularly anachronistic yardstick with which to measure a considerably removed historical period. As a result, he misses significant shifts in argument that fall short of the mark. Furthermore, Levy largely interprets the history as progressing toward a repudiation of seditious libel. But as we shall see below, to the historical agents themselves, seditious libel per se ceased to be the sole pivotal issue after the trial of New York printer John Peter Zenger in 1735.
Finally, Rabban's excellent essay also draws our attention to a crucial body of historical scholarship that Levy ignores. Since the 1960s, a mountain of historical research has documented the increasingly dominant "republican" character of American political thought during the eighteenth century. This literature, discussed more fully below, finds in early American political discourse a stress on civic virtue and public, rather than private, good. Neglecting this research, Levy finds no broad theoretical change that would have undermined traditional views of press liberty. To the contrary, I maintain that republican ideology played a crucial role in the development of press freedom. As we shall see, republicanism's emphasis on the contest between public liberty and governmental power helps explain early Americans' increasingly rich appreciation of the relationship between press liberty and popular sovereignty.
But the libertarian interpreters assault on Emergence did not end with Rabban's essay. Drawing in part on republican historiography, Jeffrey A. Smith has recently investigated the ideology and practice of early American printers, revealing and ably documenting the evidence of what he calls "libertarianism." By focusing on printers such as Benjamin Franklin, Smith is able to correct some of Levy's oversights and misinterpretations while generally demonstrating that "libertarian" practices and principles were more widespread and more important than Levy recognizes.
Recent work, then, has provided a powerful counterpoint to Levy's account. But radical revisionism like Levy's invites radical responses. Thus, if only to set the record straight, Rabban's essay and Smith's book heavily stress the most libertarian moments and arguments. To be sure, Smith has noted that the meaning of press liberty "consisted of many strands and many colors." Yet, as one reviewer has observed, Smith still "seeks a core 'libertarian' position." As a result of this sharp focus, much of Levy's solid evidence "emerges largely untouched." Moreover, the thinking of conservatives is left unexplained.
This, then, is the crux of our problem. Having wandered into this academic argument, how are we to explain an ambivalent legacy that presents indisputable evidence of efforts at suppression existing alongside attempts at liberation? How, for example, are we to understand Patriot defenses of their publicly condemning and even hanging in effigy a Tory printer simply for making his newspaper open to contributors of every political stripe, precisely when monumental public issues were being discussed? We might, with Smith, simply label such instances "inconsistencies," or failures of "libertarian" self-control. But that will not do because, as we shall see, many moves to suppress the press were defended--with sincerity and acumen--as efforts to protect press liberty.
Happily, we are not alone in our effort to make sense of this ambivalent legacy. An excellent essay by historian Richard Buel directly confronts some of Levy's evidence and explains it by noting that republicanism would permit some suppression of press freedom if it was necessary to defend the people's liberty more generally. This certainly accords with my analysis, since I document a long-standing emphasis on the press as a bulwark against governmental encroachment, and thus the prime defender of public liberty (the free press). However, Buel's essay fails to appreciate the interdependent if potentially contradictory role of open press doctrine: the strain of argument that posits the right of every man to air his sentiments for all to consider, regardless of the political viewpoint advanced and its impact on public liberty.
One scholar who suggests a distinct open press approach is the late Stephen Botein. For Botein, however, developments in press discourse are best explained as part of reactive "business strategies," such as maintaining an impartial newspaper—open to all sides—so as to serve all possible customers. The printers examined here certainly were businessmen and, as we shall see, economics played an important role in the conceptual history of press liberty. Yet, whereas Botein sees economics as the main determinant of press theory and practice, I demonstrate that these forces were subordinate. The main forces of change were ideological and political. Indeed, it is only by examining these contexts that we can begin to explain the pivotal conceptual evolutions of the eighteenth century.
Previous studies, then, for different reasons and from different perspectives, fail to explain fully and robustly our ambivalent legacy of suppression and liberation. To be sure, the heated exchanges and extremist positions of the current debate suggest the high stakes--in terms of cultural clout and legal authority--of this historiographical dispute. But the polarized academic landscape also provides fertile ground for this book's effort to synthesize this disjointed literature by employing some new analysis and certain new material. Ultimately, I hope to reveal the central dynamic of the founding of American press liberty. That dynamic involved two interconnected yet potentially contradictory doctrines (free press and open press) developing within an evolving tradition (the "free and open press"). By taking account of this central dynamic, the present study explains a great deal more of the evidence, both practical and theoretical, than either strand of the existing scholarship. This analysis thus allows us to better understand the foundation of modern American democratic press liberty.
This clearer understanding is, of course, valuable to scholars. For example, historian John Nerone can see only irony in the Patriots' antipress violence against Tories in the early 1770s, given the Patriots' repeated praise for press liberty. As analyzed below, however, one gains a richer understanding of this critical moment when Patriots and Tories forced one another to rethink the unitary free and open press discourse, ultimately causing its bifurcation into two clearly distinguished and potentially contradictory doctrines. But appreciating the conceptual evolution of press liberty and accounting for more of the evidence is not only a matter of getting the history right. The current standoff between Levy and the libertarian interpreters is deeply troubling for contemporary free speech thinking because both stories imply that defending press liberty is a simple and easy business. Levy uses an anachronistic standard and ignores actual press practice to demonstrate that the Framers fell short of "true" press liberty, only to claim it appeared abruptly around 1800; this leaves the reader satisfied that we have since largely succeeded where eighteenth-century statesmen failed. Smith, Rabban and others rescue old myths by stressing the grand struggle for republican liberty while largely ignoring Levy's solid evidence of recurrent suppression. Either way, liberty of expression is something we need not spend a lot of time or effort on: Simply by continuing to surpass--or merely following--early heroes we can be ensured success. But as this study demonstrates, explaining both bodies of evidence reveals a much more demanding, ambivalent legacy, one we need to appreciate fully if we are to address our contemporary free speech struggles in any depth, with any success.
A "Notorious Debate"
As I suggested earlier, revisiting and reinterpreting early controversies over free expression teaches us a great deal about early American political thought. Thus, in this book I hope to recast the second argument into which we have wandered: the long-standing and remarkably persistent debate over the general character of eighteenth-century American political thought. This debate between "liberal" and "republican" interpreters is well known and well-documented, so I will not tax the reader with yet another lengthy summary. Suffice it to say, "liberal" students of early American political thought such as Joyce Appleby and John Patrick Diggins see a stress on individual rights and responsibilities in commercially-expanding eighteenth-century America. They emphasize the role of John Locke and other early theorists interpreted as liberals, and stress the emergence of motivating norms focused more on individual rights and liberties in the maintenance of contract and commerce. The "republican" school--alluded to briefly above--is frequently associated with Bernard Bailyn, Gordon Wood, and J.G.A. Pocock, among others, and sees as central to early American political thought a concern with the peoples' common good as threatened by either a power-hungry administration or the inevitable decay of republican forms of government. This interpretation stresses the place of civic virtue in the thought of the colonists and considers Locke but one influence among many. Finally, much of this debate centers on differences over when republicanism "ended" and liberalism "began."
In the last decade or so there has been a welcome recognition that the relationship between liberalism and republicanism in early American political thought is more complex. The present study contributes to some recent attempts to reconsider this academic debate by elucidating a certain degree of historical and theoretical consonance between republican and liberal thought. Fitting neatly within neither side of the debate, my analysis demonstrates the need to recast this scholarly discourse. As we shall see, a predominantly "republican" stress on public liberty and the public good (free press doctrine) and a more nearly "liberal" notion of individual rights (open press doctrine) co-existed in a single, ambivalent tradition throughout much of the eighteenth century. The way these two doctrines of press liberty played out during the latter half of that century suggests the inadequacies of any approach that assumes an adversarial relationship between liberal and republican political "languages."
But what, then, are we to make of this bilingual, or as I call it, ambivalent, tradition? Acknowledging the plethora of solid, textual evidence supporting each of the competing interpretations, one recent approach advanced by Michael Zuckert seeks to explain both bodies of evidence. Early Americans' appeal to both liberal and republican themes makes sense, according to this view, because the themes existed on different "levels" of political thought. Republicanism is really political thinking on the level of political science, while what is often called "liberalism" is on the plane of political philosophy." Elsewhere the distinction is characterized as that between "fundamental ends and necessary means," or simply as that between "theory" and "practice." However described, this distinction saves early Americans from their contradictions by harmonizing republican and liberal themes on parallel levels, thus returning the liberal Locke to his central role of theorizing the fundamental ends of government for which the republican politics of America would be fashioned.
This ends/means distinction is clearly a very promising approach, furnishing as it does a rather tidy resolution to a long-standing and influential scholarly muddle. On the other hand, in this book I investigate a pivotal political concept from its seventeenth-century roots through its puzzling eighteenth-century mixture of liberal and republican themes. And contrary to this recent interpretation, I demonstrate that as the concept of press liberty evolved, liberal and republican themes exhibited discord as well as harmony. Specifically, we shall see the open press priority on individual rights and the free press emphasis on defending the public good coexist in one vague but unified tradition until the unprecedented contexts of the Revolutionary and Founding eras revealed previously unseen contradictions, which in turn forced that tradition to bifurcate and subsequently evolve.
None of the ideological twists and turns I analyze below would be problematic for Zuckert's approach if they involved discursive moves between distinct levels of thought, between philosophical fundamentals and the practical means of governing men. However, for the issue of press liberty at least, no such distinction is tenable. Press freedom was and is a topic given to clashes involving both practical politics and abstract philosophy. For early Americans, press liberty was an end as well as a means, a matter of both the philosophy and the science of politics. As a practical "means," free speech was taken to be the primary "bulwark" of all other liberties, private as well as public. But as we shall soon see, free speech was also a matter of "the general principles of liberty, and rights of man, in nature and in society" for Thomas Jefferson and his contemporaries. Thus, the penetrating issue of press liberty suggests the untenable nature of any attempt to resolve the "notorious" liberal/republican debate through a distinction between ends and means.
The Conceptual History of Press Liberty
How, then, are we to resolve the dilemma presented by illustrious ancestors who undeniably spoke and wrote in two distinctive and often irreconcilable idioms? Unfortunately, the resolution I advocate is not nearly as orderly as that explored by Zuckert; indeed, it is not really a resolution at all. Rather, I begin by conceding—with Michael Lienesch and others—that the thinking of eighteenth-century Americans was "ambivalent, contradictory, and sometimes flatly paradoxical." That is, I pay the "terrible price" that scholars following Zuckert seek strenuously to avoid: "the resolute concession to human self-contradiction." In fact, I have argued elsewhere that the existence of some contradictions in any individual's thinking is an unavoidable part of human life. Given the breadth and depth of human thought, the almost infinite implications that those thoughts carry, and the ceaseless transformation of the world around us, it is not at all surprising that some of our views, beliefs, and practices would be in conflict with others. Rather, it would be a miracle if we could keep them all in perfect harmony.
Given all these contradictions, how can we--or our historical subjects--remain functional? Actually, most of these contradictions exist on the margins of our consciousness or buried beneath the innumerable assumptions we use to make sense of the world. Thus, many of these contradictions remain potential contradictions
Reviews"Robert Martin's 'The Free and Open Press' is conceptual history at its most illuminating. Recognizing that human beings live via ideas that can seem to work together in one context and to be in contradiction in others, Martin
shows that many early Americans believed in both a press that would help republican government work and one in which all views could be heard. The lesson they learned--that those goals were often in profound tension--is, soberingly, one that remains true today. If that tension is to be eased, the answers must be found not only in the quantity of our rights but in the quality of our citizens."
-Rogers M. Smith, author of Civic Ideals: Conflicting Visions of Citizenship in U.S. History
"Robert Martin has thrown a brilliant spotlight on the field of press liberty and lit up vast areas of democratic theory and practice once obscured. Looking at the century and a half leading up to the American Revolutionary era, he reminds us how decisively it shaped the vast domain of modern liberty."
- Joyce Appleby, the author of Inheriting the Revolution: the First Generation of Americans