The roots of free speech

A whirlwind, 216-year tour fromQueen Elizabeth to Thomas Jefferson

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 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”

• “I deplore ... the putrid state into which our newspapers have passed”