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"Give me liberty to know, to utter, and to argue freely
according to conscience, above all liberties." -John Milton

Although articulated by an English poet and statesman, the expression by John Milton quoted here represents the principles of free expression that most Americans fondly believe in as the guiding principles of their country.

It is commonly believed that as a child of the Enlightenment, the United States inherited and installed a libertarian model of a press open to all shades of opinion.

As research reveals, however, the actual history of U.S. free expression is not so simple. In fact, most of the Founding Fathers were as suspicious of unlimited freedom of expression as they were of democracy. Although the era of revolutions led to unprecedented freedom of publication, government in the new republic found ways to leash speech it considered irresponsible-a trend we still see today.

Virtually unlimited freedom of expression is a recent and fragile development in political history. Even in the 20th Century, the press has been most free in times of peace and prosperity. In periods of national and especially international tension, the U.S. government has found it necessary to institute censorship or other constraints, as it did in 1991 during the Persian Gulf War.

In simplest terms, the libertarian model we cherish (not to be confused with the political party of the same name) argues that truth is to be sought in a free marketplace of ideas. Ideas, like economies, benefit from competition, which leads to refinement and clarification. In the unfettered collision of ideas, the principle holds, truth will eventually, if not immediately, emerge triumphant.

For government to interfere would be to distort the process and forestall the triumph of truth. Ideas are sometimes dangerous, but not so dangerous as the government that would restrain them.

This libertarian theory of the press has its roots in 17th Century Britain. It was born of three forces: the Renaissance spirit of open inquiry, the spread of the printing press, and revolution. In his tract Areopagitica (1644), its most famous advocate, John Milton, Latin Secretary to the Puritan Interregnum and author of the great English epic Paradise Lost, wrote: "I cannot praise a fugitive and cloistered virtue, unexercised and unbreathed, that never sallies out and sees her adversary, but slinks out of the race where that immortal garland is to be run for...that which purifies us is trial, and trial is by what is contrary."

Milton's majestic prose was marshaled against the Puritan government's licensing act of June 1643, which could be used to impose prior restraint on authors whose views it disliked. Milton provided the classical formulation of the principle that truth is most likely to emerge in a "free and open encounter."

For the political philosopher John Locke, freedom of expression was not so much a natural right as a form of intellectual humility and an exercise in social harmony. Providing a more secular interpretation of the marketplace of ideas at the end of the British revolutionary period, Locke recommended that we "commiserate our mutual ignorance and endeavor to remove it in all the gentle and fair ways of information."

But the greatest 18th Century articulation of the libertarian principle comes not from a political theorist but from John Erskine, a lawyer who defended writer and pamphleteer Thomas Paine's controversial Rights of Man in a London court.

Erskine argued that every man, "not intending to mislead, but seeking to enlighten others with what his own reason and conscience, however erroneously, have dictated to him as truth, may address himself to the universal reason of the whole nation."

Although Paine was convicted, Erskine's view that "other liberties are held under government, but the liberty of opinion keeps governments themselves in due subjection to their duties," carried the theory of free expression to a new height.

Such statements as these are enlightened and eloquent, but they do not tell the whole story. The principles of free expression these writers articulated was never as absolute in practice as it might seem when its boldest formulations are quoted out of context. Milton, for example, demanded freedom of expression for himself and for responsible Protestants, but he sought to deny it to Catholics, atheists, some Anglicans, and non-Christians, i.e., a majority of English citizens. John Locke argued that "no opinions contrary to human society or to those moral rules which are necessary to the preservation of civil society are to be tolerated by the magistrate." And though Erskine defended Thomas Paine's political heresies, he could not stomach the famous pamphleteer's religious opinions. In 1797 Erskine joined the prosecution when Paine was tried for his provocative anti-religious text, The Age of Reason.

"What is liberty of the press? Who can give it any
definition which would not leave the utmost latitude
for evasion? I hold it to be impracticable; and from this,
I infer, that its security…must altogether depend on public opinion
and on the general spirit of the people and of the government."
- Alexander Hamilton, The Federalist

Short of Ideal

It is one of the ironies of history that bold pronouncements of free expression have frequently been intended for only partial (and partisan) application. The marketplace of ideas must be free-except for members of the religious, political or social opposition. Upon closer inspection, the libertarian principle usually can be found to mean freedom of expression for "serious" thinkers, for scholars and statesmen, but not for rebels, heretics, and ephemeral journalists. The free marketplace model is usually invoked by members of the opposition. Absolute libertarians are few. To this day, although restriction on government censorship is well established, this tension between ideal and practice is reflected in the continuing conflicts that surround the definitions of pornography, libel and the publication, filming or broadcast of opinions that many consider controversial or obnoxious.

Such events as the Red Scare that followed World War I and the Pentagon Papers case during the Vietnam War remind us that freedom of expression has never flourished in its fullest formulation even in the United States.

The United States was born in a rush of revolutionary rhetoric. Libertarian principles and human rights were invoked by the American insurgents in their struggle to free themselves from the colonial yoke. The prospect of liberty inspired an articulation of idealism, aspiration, and natural rights on an unprecedented scale. It appeared-briefly-that the program of the Enlightenment might be instantaneously inscribed on the tabula rasa of the New World. Freedom of commerce, of assembly, of conscience, of the press would flourish on American soil. The United States' first experiments in constitution-making (including the Articles of Confederation) were hopeful, bordering on utopian.

Ironically, the success of the American Revolution led to a partial disintegration of these yeasty principles. Colonists who had united to fight for national independence found, once the foreign oppressor was gone, that they disagreed considerably in temperament and in their visions of an American social order. Many (most notably Alexander Hamilton) who had spouted libertarian concepts in the heat of the insurrection made it clear that they did not wish to be held to such dangerous principles now that it was time to create governments in the United States. Those who did not lose their revolutionary edge were dismayed by the rise of a party of high-toned Federalism. Thomas Jefferson spoke for thousands of Americans when he suggested, from Paris, that the new constitution of 1787 was too nationalist, too consolidated. It was, he said, like bringing in a hawk to police the henhouse. In the aftermath of the peace settlement with Britain in 1783, the United States took a conservative turn. In particular, the excesses of the French Revolution put the old libertarian principles on the defensive in America.

"Our liberty depends on the freedom of the press,
and that cannot be limited without being lost."
Thomas Jefferson to Dr. James Currie, 1786

A Last Stand

The Bill of Rights of 1791 may be seen as the last great expression of the idealism of the American Revolution. The 55 founders who met in Philadelphia to write the 1787 constitution did not produce a declaration of rights. The Bill of Rights was appended to the constitution four years later. James Madison shepherded the first 10 amendments through the first Congress of the United States, not because he considered them critical to the maintenance of civil liberties in America, but because the citizens of the new republic-led by Jefferson and his Virginia compatriot George Mason-demanded a Bill of Rights as the price of constitutional ratification.

At face value the First Amendment encapsulates the best of the Miltonic tradition. Its insistence that Congress "shall make no law... abridging the freedom of speech, or of the press" would seem to provide a solid constitutional foundation for the erection of the free marketplace of ideas-at least in the national arena. In fact, it was routinely construed throughout the early republican period of our history as scarcely more than an agreeable ideal.

The reason for the tension between the apparent absolutism of the First Amendment and its somewhat more pedestrian legal status is not far to seek. First, because of the peculiarity of its adoption, the Bill of Rights was never carefully debated by the constitution-makers, by members of the First Congress, or by the citizenry. The framers discussed a Bill of Rights only briefly-in general rather than specific terms-before adjourning without adopting one in September of 1787.

When it became clear that a declaration of rights must be adopted before the people, particularly anti-Federalists, would accept the new constitution, Congress approved Madison's amendments without significant debate.

Careful debate at any stage of the process might have given the American people an opportunity to clarify their understanding of the place of free expression in the societies of New World. Instead the peculiar historical circumstances surrounding the adoption of the Bill of Rights resulted in postponement of debate about freedom of the press. By then the libertarian First Amendment was in place. Much of the historical confusion about freedom of expression in America can be traced to this source. Historian Leonard Levy has described the adoption of the First Amendment as "a lucky historical accident."

Second, the early republic must be seen as an experiment in self-government. The revolution discredited one form of social control (British colonial rule) without precisely defining an alternative. In spite of the lucidity of their prose, the Founding Fathers were in fact groping to define the principles-and the ways and means-of a new nation. Naturally, in the first flush of independence, many Americans were intoxicated with the heady program of the Enlightenment. The first decades of the United States experience may be seen as a laboratory in which the principles of the Enlightenment, Old World traditions, and unprecedented circumstances collided. And hark-what discord followed! Fundamental questions were raised, usually in acrimonious controversy: What should be the role of faction or party in America? How should the government in power respond to opposition, particularly scurrilous attacks? What is the proper relationship between newspapers and political parties? Who is the final arbiter of constitutional disputes: states, the legislature, or the Supreme Court?

As questions were answered in the heat of governing, most of the Founding Fathers were content to invoke the formulae of the marketplace principle, while pursuing more constricted policies in practice. In spite of state and national bills of rights, ostensibly insuring free exchange of ideas, virtually all states chose to reestablish the British common law that enabled the government to prosecute the authors-or printers-of seditious libel. In most cases the jury was permitted only to determine whether the defendant was guilty of publication; the judge alone decided whether the act of speech was libelous or permissible. In some states, beginning in 1790, truth was permitted as a defense-a doctrine that had its roots in the 1735 Zenger case-but as often as not this defense was available only in press attacks on government, not on individuals who held political office.

Freedom of expression also suffered significant setbacks in the first years of the new republic. In a message to Congress in 1794, President George Washington denounced the Democratic Societies that had sprung up in western Pennsylvania to coordinate protests against the hated whiskey taxes of Alexander Hamilton. Reaction to Washington's address inaugurated debate about freedom of expression.

In a period of feverish international tension between the United States and France during the administration of John Adams, the Federalist Congress passed the Alien and Sedition acts (1798), which enabled the government to expel foreign-born undesirables and to prosecute those who published "any false, scandalous and malicious writing" about the government, Congress or the President. Fourteen journalists and printers were indicted under the Sedition Law-all of them partisans of the nascent Republican party, which looked to Jefferson and Madison for leadership. The law's unpopularity precipitated the election of Thomas Jefferson, who pardoned the offenders after he took office in March of 1801. Although the Sedition Law was used solely as a club to crush political opposition, its acceptance of truth as a defense, allowance of greater scope to juries and requirement that criminal intent be proved did represent a significant improvement over common law.

Despite the steady supply of pro-free speech pronouncements that issued from his felicitous pen, even Jefferson was so frustrated by admittedly scurrilous attacks on his character during his administration that he suggested, in a letter to Pennsylvania Governor Thomas McKean, in February 1803, that "a few prosecutions of the most eminent offenders would have a wholesome effect in restoring the integrity of the press."

Jefferson believed that the national government had no power to limit freedom of expression (in this he compares favorably with his predecessors), but he could cheer fully contemplate state-based prosecution under the common law, so long as truth was permitted as a defense. Certainly Jefferson was more committed to free exchange than most Americans of his time, but he showed a Miltonic tendency to reserve unlimited liberty to serious thinkers and writers.

It must be admitted that Jefferson maintained a double standard. Out of power, he was the American champion of the free marketplace of ideas; in fact, he made quasi-secret cash payments to one of the most irresponsible and vituperative hack writers of his time, James Callender. In power the thin-skinned Jefferson was not averse to a few wholesome prosecutions. On the question of press freedom, as in a number of other arenas, Jefferson's achievement was to articulate idealistic principles that he was not always able to uphold in power.

Although James Madison was the first American President to pursue a scrupulously libertine policy on freedom of expression, progress for the concept came from another unlikely source: Alexander Hamilton, who is identified with his distrust of "the rabble." Hamilton, who was practicing law after his retirement from Washington's cabinet, handled the appeal of Harry Croswell, editor of the Federalist mouthpiece, The Wasp, who was one of the "wholesome prosecutions" during the Jefferson administration. Croswell had charged-with some truth-that James Callender had been paid by Jefferson to write denunciations of George Washington and John Adams.

The question for citizens of the late 20th Century
is not so much, "How free is the press,"
but rather, "How expensive is a free press?"

Wholesome Prosecutions

Hamilton argued that the jury should be empowered to determine whether an alleged libel was criminal and insisted that truth be allowed as a defense. The split vote and Hamilton's masterful argument led, one year later, to a New York law that incorporated all of his proposals. The Founding Fathers lived during a violently partisan era of American political life. The press made little or no attempt to be objective. One historian has called it the dark age of American journalism. Political leaders were routinely abused, in startlingly personal terms, by the opposition press. In the minds of the principal national leaders, these were no routine political contests. Everything was at stake. Jefferson and Hamilton-and their followers-believed they were locked in a struggle for the soul of the new republic. Reasonable men wondered how much opposition a fragile experiment in government could absorb without endangering its survival. Men of principle in both parties found themselves descending to behavior that in theory (and in opposition) they found reprehensible.

The debate continues. In the late 20th Century prior restraint is seldom attempted except where the government believes matters of national security are at stake: e.g., the Pentagon Papers case. Government officials have little recourse in the face of press criticism, even when it is clearly irresponsible and slanderous. Mostly unsuccessful attempts are occasionally made to force journalists to name their sources, but institutions of the press are seldom held accountable for the news they obtain and publish about government.

From the perspective of the historic champions of a free marketplace of ideas, the libertarian model has more or less become orthodoxy in the United States. In this regard the United States compares favorably with other nations, including Great Britain, where prior restraint occasionally rears its head and where the absence of a freedom of information act is sometimes painfully evident.

Americans-children as much of Puritanism as of the Enlightenment-continue to fret over pornography and obscenity, but it is unlikely that any 18th Century gentleman would find the widespread availability of pornographic literature in our time to be evidence of a repressive culture. Recent attempts to curb the grantmaking discretion of the National Endowment for the Arts are more troubling; it seems likely, however, that Thomas Jefferson would see the NEA controversy as a church-state issue rather than a problem of freedom of expression. The contemporary arena for public debate about freedom of expression seems to be the schoolhouse. Americans continue to grapple with the problem of deciding whether to regard high school and college students as incipient adults who therefore deserve to enjoy the full compliment of citizenship rights, or cultural apprentices whose exercises in freedom must be carefully supervised. It is likely that this debate will grow much more lively as we enter the 21st Century.

The triumph of industrialization and capitalism (Hamilton's vision) has fundamentally altered the nature of the debate in our time. The question for citizens of the late 20th Century is not so much, "How free is the press," but rather, "How expensive is a free press?" In Jefferson's time anyone with a modest amount of spare cash could publish pamphlets, broadsheets, electioneering tickets, and newspapers. Although the nation soon settled on two major political parties (the administration and its opposition), a wide range of points of view was available to the people of the new republic. In a sparsely populated, coastal republic, letters were themselves a significant political medium and products of the press were routinely distributed hand to hand, shared between friends, handed about in taverns and coffee houses.

In the last years of the 20th Century the cost of purchasing space or time on existing media of communication is so enormous that the average citizen has been effectively disenfranchised as a participant. This produces many problems, not the least of which is a narrowing of political discourse, a homogenization of the message. True, less expensive media exist (computer bulletin boards, electronic mail, desktop-produced newsletters), but they have so far played a minuscule role in the nation's political drama. In Alexander Hamilton's mercantilist empire the question is not freedom of expression but access.


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