Libel and the First Amendment

Author:Benno C. Schmidt

Page 1606

A central historical question about the FIRST AMENDMENT is to what extent it embodied the received eighteenth-century legal traditions of English law and governmental practice as they were reshaped and renewed in the colonial, revolutionary, and formative periods in America. Or was the amendment a break from these traditions? This issue can be stated either as a question of the intent of the Framers and ratifiers or as a matter of the normative impact of an authoritative text, elaborated in our century within an institutional matrix of JUDICIAL REVIEW radically different from that of the eighteenth century on either side of the Atlantic. However the question be stated, the historical problem is in essence whether the First Amendment is to be regarded as expressing a principle of continuity with the received legal tradition or as constituting a declaration of independence from English law, thereby projecting the American law of freedom of expression on a path of autonomous development.

The general view emphasizes continuity, both as a matter of the original understanding of the Framers of the First Amendment and as a matter of the amendment's later?much later?doctrinal elaborations. Indeed, we conventionally measure continuity or discontinuity by reference to the basic conceptual dichotomy of the English legal tradition, as formulated by WILLIAM BLACKSTONE, the oracle of the COMMON LAW for the framing generation:

where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by the English law ? the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity [ Commentaries on the Laws of England, 1765, Bk. 4, chap. II, pp. 151?52].

The issue whether the First Amendment embraced or departed from the English legal tradition with respect to subsequent punishment tends to be fixed on the treatment of SEDITIOUS LIBEL. The historical argument for the law of seditious libel has been that government ought to have power to punish its most abusive or subversive critics because criticism of government contains the seeds of a variety of evils?disobedience to government, public disorder, even violence?and that no government can subsist if people have the right to criticize it or to call its agents corrupt or incompetent. This is seen in the work of Leonard W. Levy, ZECHARIAH CHAFEE, and others who have lately examined the First Amendment's historical foundations by looking at seditious libel as the exclusive focus for probing the question of continuity and discontinuity with respect to subsequent punishments. Having...

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