The origination and early development of free speech in the United States a brief overview: after the tumultuous early years in our nation's history, the status of freedom of speech remained fairly quiescent in American jurisprudence for over 100 years.

• Author: Kahn, Michael

The First Amendment guaranty of freedom of speech is one of the most revered cornerstones of American society. The full text of the amendment reads: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or of the right of the people peaceably to assemble and to petition the government for a redress of grievances." (1) Historically, what were the origins of free speech theory in the United States and how did the concept of freedom of speech expand to its present scope? This article will briefly explore the origination and early development of free speech theory and practice in the United States.

Most scholars agree that the American political concept of free speech as embodied in the First Amendment originated with the British. However, in the 17th and 18th centuries the intellectual heritage of free speech was diverse. The 17th century Dutch philosopher Benedict de Spinoza (1632-1677), whose philosophy was well known in the colonies, believed that liberty of speech was based upon an "indefeasible natural right" of individuals. (2) Spinoza qualified his support of liberty of speech with the caveat that in some instances government could punish speech if a man spoke opinions "which by their very nature nullify the [social] compact." (3) The French philosopher Montesquieu (1689-1755) believed in the distinction between speech and overt action. In his monumental work, The Spirit of the Laws, he wrote: "The laws do not take upon them to punish any other than overt acts.... Words do not constitute an overt act; they remain only an idea." (4)

Thomas Jefferson drew from the precepts of the British philosopher John Locke when he penned the Declaration of Independence. (5) Locke eloquently spoke of man's inalienable rights to life, liberty, and pursuit of property. (6) He was an adherent of the Social Compact theory of government by which a free and independent man gave up unfettered freedom (and anarchy) for the order and security of civilized government. (7) Thus, in advocating the Social Contract theory, Locke at once established the concept of certain unalienable rights inherent to man as well as a theory of government other than divine right. (8) Further, Locke advocated the right of revolution if the government, established by the consent of the governed, should tyrannize its citizens, thus breaking the contract. (9)

Certainly the understanding of free speech that the framers of the Constitution and the Bill of Rights had was taken largely from the scholarship of Sir William Blackstone. (10) He was one of the most ardent early advocates of free speech and, perhaps, its foremost spokesperson in 18th century England. An oft-quoted passage from Blackstone's Commentaries on the Law of England is thought to have formed the basis of the inchoate American colonial concept of free speech. Blackstone observed that

[t]he liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication and not in freedom from censure for criminal matter when published. Every free man 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. (11) It is significant to note that Blackstone excepted certain categories of utterances as not being included in protected speech, including speech that was "blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels." (12) This led to the early distinction which became rooted in American law between prior restraint and subsequent punishment, the definition and elucidation of which distinction an entire series of lectures could easily be composed. Suffice to say, the distinction between prior restraint and subsequent punishment has suffered the vicissitudes of American jurisprudence but has recently been firmly reemphasized by the U.S. Supreme Court. (13) Blackstone certainly recognized the difference between prior restraint and subsequent punishment when he wrote in his commentaries that

[t]he liberty of the press ... consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.... To subject the press to the restrictive power of a licensor [is] to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. (14) The Supreme Court of the United States blurred the distinction between prior restraint and subsequent punishment beginning with its decision in Near v. Minnesota, 283 U.S. 697 (1931), in which it correctly observed, as with the fact pattern in Near, that some subsequent punishments operate to chill speech and, therefore, also constitute prior restraint. In more recent decisions, the court is reinforcing the distinction between prior restraint and subsequent punishment. For example, in the case of Alexander v. United States, 509 U.S. 544, 553-54, 566 (1993), the majority noted that the petitioner had attempted to dismiss the distinction between prior restraint and subsequent punishment as neither meaningful nor useful. The court opined that the distinction was "crucial to our First Amendment jurisprudence." Thus, the Supreme Court has recently held that the First Amendment provides much greater protection from prior restraints than from subsequent punishment, originating no doubt from William Blackstone's earliest pronouncements regarding the doctrine of free speech. (15)

Let us not mistake our English forefathers, however; their feet certainly were made of clay. The earliest English history and jurisprudence reveal a deep-seated fear by the church and crown of free speech, which was exacerbated when in 1476 William Caxton set up the first printing press at Westminster and published the first book in England. (16) Authorities of the church and crown worried, probably correctly in retrospect, that the twin "evils" of heresy and insurrection would be furthered by widespread publications and corresponding dissemination of information. (17) Generally speaking, the British crown used three methods to suppress free speech: licensing, constructive treason, and seditious libel. (18) Licensing was the original system of "prior restraint." Soon after the first book was printed in England, the crown empowered the Stationer's Company, whose approval was necessary for...