Amendment I (Speech and Press)

Document 27

St. George Tucker, Blackstone's Commentaries, 1:App. 298--99, 2:App. 12--25, 27--30


Our state bill of rights declares, that the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments. The constitutions of most of the other states in the union contain articles to the same effect. When the constitution of the United States was adopted by the convention of Virginia, they inserted the following declaration in the instrument of ratification: "that among other essential rights, the liberty of conscience, and of the press, cannot be cancelled, abridged, restrained, or modified by any authority of the United States."

An ingenious foreigner seems to have been a good deal puzzled to discover the law which establishes the freedom of the press in England: after many vain researches, he concludes, (very rightly, as it relates to that government,) that the liberty of the press there, is grounded on its not being prohibited1 . But with us, there is a visible solid foundation to be met with in the constitutional declarations which we have noticed. The English doctrine, therefore, that the liberty of the press consists only in this, that there shall be no previous restraint laid upon the publication of any thing which any person may think proper, as was formerly the case in that country, is not applicable to the nature of our government, and still less to the express tenor of the constitution. That this necessary and invaluable liberty has been sometimes abused, and "carried to excess; that it has sometimes degenerated into licentiousness, is seen and lamented; but the remedy has not been discovered. Perhaps it is an evil inseparable from the good to which it is allied; perhaps it is a shoot which cannot be stripped from the stalk, without wounding vitally the plant from which it is torn. However desirable those measures might be which correct without enslaving the press, they have never yet been devised in America2 ."

It may be asked; is there no protection for any man in America from the wanton, malicious, and unfounded attacks of envenomed calumny? Is there no security for his good name? Is there no value put upon reputation? No reparation for an injury done to it?

To this we may answer with confidence, that the judicial courts of the respective states are open to all persons alike, for the redress of injuries of this nature; there, no distinction is made between one individual and another; the farmer, and the man in authority, stand upon the same ground: both are equally entitled to redress for any false aspersion on their respective characters, nor is there any thing in our laws or constitution which abridges this right. But the genius of our government will not permit the federal legislature to interfere with the subject; and the federal courts are, I presume, equally restrained by the principles of the constitution, and the amendments which have since been adopted.

Such, I contend, is the true interpretation of the constitution of the United States: it has received a very different interpretation both in congress and in the federal courts.

. . . . .

In England during the existence of the court of star chamber, and after it's abolition, from the time of the long parliament to the year 1694, the liberty of the press, and the right of vending books, was restrained to very narrow limits, by various ordinances and acts of parliament; all books printed were previously licensed by some of the great offices of state, or the two universities, and all foreign books were exposed to a similar scrutiny before they were vended. No shopkeeper could buy a book to sell again, or sell any book, unless he were a licensed bookseller. By these and other restrictions the communication of knowledge was utterly subjected to the control of those, whose interest led them rather to promote ignorance than the knowledge of truth. In 1694, the parliament refused to continue these prohibitions any longer, and thereby, according to De Lolme, established the freedom of the press in England. But although this negative establishment may satisfy the subjects of England, the people of America have not thought proper to suffer the freedom of speech, and of the press to rest upon such an uncertain foundation, as the will and pleasure of the government. Accordingly, when it was discovered that the constitution of the United States had not provided any barrier against the possible encroachments of the government thereby to be established, great complaints were made of the omission, and most of the states instructed their representatives to obtain an amendment in that respect; and so sensible was the first congress of the general prevalence of this sentiment throughout America, that in their first session they proposed an amendment since adopted by all the states and made a part of the constitution; "that congress shall make no law abridging the freedom of speech, or of the press." And our state bill of rights declares, "that the freedom of the press is one of the great bulwarks of liberty, and cannot be restrained, but by despotic governments." And so tenacious of this right, was the convention of Virginia, by which the constitution of the United States was ratified, that they further declared, as an article of the bill of rights then agreed to, "that the people have a right to the freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated3 ." Nay, so reasonably jealous were they of the possibility of this declaration being disregarded, as not forming a part of the constitution, at that time, that the following declaration is inserted in, and forms a part of, the instrument of ratification, viz. "That the powers granted under the constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression; and that, every power not granted thereby, remains with them, and at their will: that, therefore no right; of any denomination, can be cancelled, abridged, restrained, or modified by the congress, by the senate, or house of representatives, acting in any capacity; by the president, or any department, or officer of the United States, except in those instances where power is given by the constitution for those purposes: that among other essential rights, the liberty of conscience, and of the press, cannot be cancelled, abridged, restrained, or modified, by any authority of the United States4 ."

As this latter declaration forms a part of the instrument by which the constitution of the United States became obligatory upon the state, and citizens of Virginia; and as the act of ratification has been accepted in that form; no principle is more clear, than that the state of Virginia is no otherwise bound thereby, than according to the very tenor of the instrument, by which she has bound herself. For as no free state can be bound to another, or to a number of others, but by it's own voluntary consent and act, so not only the evidence of that consent, but the nature and terms of it, can be ascertained only by recurrence to the very instrument, by which it was first given. And as the foregoing declaration not only constitutes a part of that instrument, but contains a preliminary protest against any extension of the enumerated powers thereby granted to the federal government, it could scarcely have been imagined, that any violation of a principle so strenuously asserted, and made, as it were, the sole ground of the pragmatic sanction, would ever have been attempted by the federal government.

But however reasonable such an expectation might have been, a very few years evinced a determination on the part of those who then ruled the public councils of the United States, to set at nought all such restraints. An act accordingly was passed by the congress, on the fourteenth of July 1798, whereby it was enacted, that "if any person shall write, print, utter or publish any false and malicious writing against the government of the United States, or either house of congress, or the president, with intent to defame them, or either of them, or to bring them or either of them into contempt, or disrepute; or to excite against them or either of them, the hatred of the good people of the United States, then such person, being thereof convicted before any court of the United States having jurisdiction thereof shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years." The act was limited in it's duration to the third day of March, 1801, the very day on which the period for which the then president was elected, was to expire; and, previous to which the event of the next presidential election must be known.

The consequences of this act, as might have been foreseen, were a general astonishment, and dissatisfaction, among all those who considered the government of the United States, as a limited system of government; in it's nature altogether federal, and essentially different from all others which might lay claim to unlimited powers; or even to national, instead of federal authority. The constitutionality of the act was accordingly very generally denied, or questioned, by them. They alleged, that it is to the freedom of the press, and of speech, that the American nation is indebted for its liberty, it's happiness, it's enlightened state, nay more, for it's existence. That in these states the people are the only sovereign: that the government established by themselves, is for their benefit; that those who administer the government, whether it be that of the state, or of the federal union, are the agents and servants of the people, not their rulers or tyrants. . . . That these agents must be, and are, from the nature and principles of our governments, responsible to the people, for their conduct. That to enforce this responsibility, it is indispensibly necessary that the people should inquire into the conduct of their agents; that in this inquiry, they must, or ought to scrutinize their motives, sift their intentions, and penetrate their designs; and that it was therefore, an unimpeachable right in them to censure as well as to applaud; to condemn or to acquit; and to reject, or to employ them again, as the most severe scrutiny might advise. That as no man can be forced into the service of the people against his own will and consent; so if any man employed by them in any office, should find the tenure of it too severe, because responsibility is inseparably annexed to it, he might retire: if he can not bear scrutiny, he might resign: if his motives, or designs, will not bear sifting; or if censure be too galling to his feelings, he might avoid it in the shades of domestic privacy. That if flattery be the only music to his ear, or the only balm to his heart; if he sickened when it is withheld, or turned pale when denied him; or if power, like the dagger of Macbeth, should invite his willing imagination to grasp it, the indignation of the people ought immediately to mark him, and hurl him from their councils, and their confidence forever. That if this absolute freedom of inquiry may be, in any manner, abridged, or impaired by those who administer the government, the nature of it will be instantly changed from a federal union of representative democracies, in which the people of the several states are the sovereign, and the administrators of the government their agents, to a consolidated oligarchy, aristocracy, or monarchy, according to the prevailing caprice of the constituted authorities, or of those who may usurp them. That where absolute freedom of discussion is prohibited, or restrained, responsibility vanishes. That any attempt to prohibit, or restrain that freedom, may well be construed to proceed from conscious guilt. That the people of America have always manifested a most jealous sensibility, on the subject of this inestimable right, and have ever regarded it as a fundamental principle in their government, and carefully engrafted in the constitution. That this sentiment was generated in the American mind, by an abhorrence of the maxims and principles of that government which they had shaken off, and a detestation of the abominable persecutions, and extrajudicial dogmas, of the still odious court of star-chamber; whose tyrannical proceedings and persecutions, among other motives of the like nature, prompted and impelled our ancestors to fly from the pestilential government of their native country, to seek an asylum here; where they might enjoy, and their posterity establish, and transmit to all future generations, freedom, unshackled, unlimited, undefined. That in our time we have vindicated, fought for, and established that freedom by our arms, and made it the solid, and immovable basis and foundation both of the state, and federal government. That nothing could more clearly evince the inestimable value that the American people have set upon the liberty of the press, than their uniting it in the same sentence, and even in the same member of a sentence, with the rights of conscience, and the freedom of speech. And since congress are equally prohibited from making any law abridging the freedom of speech, or of the press, they boldly challenged their adversaries to point out the constitutional distinction, between those two modes of discussion, or inquiry. If the unrestrained freedom of the press, said they, be not guaranteed, by the constitution, neither is that of speech. If on the contrary the unrestrained freedom of speech is guaranteed, so also, is that of the press. If then the genius of our federal constitution has vested the people of the United States, not only with a censorial power, but even with the sovereignty itself; if magistrates are, indeed, their agents: if they are responsible for their acts of agency; if the people may not only censure whom they disapprove, but reject whom they may find unworthy; if approbation or censure, election or rejection, ought to be the result of inquiry, scrutiny, and mature deliberation; why, said they, is the exercise of this censorial power, this sovereign right, this necessary inquiry, and scrutiny to be confined to the freedom of speech? Is it because this mode of discussion better answers the purposes of the censorial power? Surely not. The best speech can not be heard, by any great number of persons. The best speech may be misunderstood, misrepresented, and imperfectly remembered by those who are present. To all the rest of mankind, it is, as if it had never been. The best speech must also be short for the investigation of any subject of an intricate nature, or even a plain one, if it be of more than ordinary length. The best speech then must be altogether inadequate to the due exercise of the censorial power, by the people. The only adequate supplementary aid for these defects, is the absolute freedom of the press. A freedom unlimited as the human mind; viewing all things, penetrating the recesses of the human heart, unfolding the motives of human actions, and estimating all things by one invaluable standard, truth; applauding those who deserve well; censuring the undeserving; and condemning the unworthy, according to the measure of their demerits.

In vindication of the act, the promoters and supporters of it, said, that a law to punish false, scandalous, and malicious writings against the government, with intent to stir up sedition, is a law necessary for carrying into effect the power vested by the constitution in the government of the United States, and consequently such a law as congress may pass. To which it was answered, that even were the premises true, it would not authorize congress to pass an act to punish writings calculated to bring congress, or the president into contempt or disrepute. Inasmuch as such contempt or disrepute may be entertained for them, or either of them, without incurring the guilt of sedition, against the government, and without the most remote design of opposing, or resisting any law, or any act of the president done in pursuance of any law: one or the other of which would seem necessary to constitute the offence, which this argument defends the right of congress to punish, or prevent.

It was further urged in vindication of the act, that the liberty of the press consists not in a licence for every man to publish what he pleases, without being liable to punishment for any abuse of that licence; but in a permission to publish without previous restraint; and, therefore, that a law to restrain the licentiousness of the press, cannot be considered as an abridgment of its liberty.

To which it was answered that this exposition of the liberty of the press, was only to be found in the theoretical writings of the commentators on the English government, where the liberty of the press rests upon no other ground, than that there is now no law which imposes any actual previous restraint upon the press, as was formerly the case: which is very different from the footing upon which it stands in the United States, where it is made a fundamental article of the constitutions, both of the federal and state governments, that no such restraint shall be imposed by the authority of either. . . . That if the sense of the state governments be wanting on the occasion, nothing can be more explicit than the meaning and intention of the state of Virginia, at the moment of adopting the constitution of the United States; by which it will clearly appear that it never was the intention of that state (and probably of no other in the union) to permit congress to distinguish between the liberty and licentiousness of the press; or, in any manner to "cancel, abridge, restrain, or modify" that inestimable right.

Thirdly it was alleged, that the act could not be unconstitutional because it made nothing penal, which was not penal before, being merely declaratory of the common law, viz. of England.

To this it was, among other arguments, answered. That the United States as a federal government have no common law. That although the common law of England, is, under different modifications, admitted to be the common law of the states respectively, yet the whole of the common law of England has been no where introduced: that there is a great and essential difference, in this respect, in the several states, not only in the subjects to which it is applied, but in the extent of its application. That the common law of one state, therefore, is not the common law of another. That the constitution of the United States has neither created it, nor conferred it upon the federal government. And, therefore, that government has no power or authority to assume the right of punishing any action, merely because it is punishable in England, or may be punishable in any, or all the states, by the common law.

The essential difference between the British government and the American constitutions was moreover insisted on, as placing this subject in the clearest light. In the former, the danger of encroachments on the rights of the people, was understood to be confined to the executive magistrate. The representatives of the people in the legislature are not only exempt themselves, from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle, that the parliament is unlimited in it's power, or, in their own language, is omnipotent. Hence too, all the ramparts for protecting the rights of the people, such as their magna charta, their bill of rights, &c. are not reared against the parliament, but against the royal prerogative. They are mere legislative precautions against executive usurpations. Under such a government as that, an exemption of the press from previous restraints, by licencers from the king, is all the freedom that can be secured to it, there: but, that in the United States the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence in the United States, the great and essential rights of the people, are secured against legislative, as well as against executive ambition. They are secured, not by laws paramount to prerogative; but by constitutions paramount to laws. This security of the freedom of the press requires, that it should be exempt, not only from previous restraint by the executive, as in Great-Britain; but from legislative restraint also; and this exemption, to be effectual, must be an exemption, not only from the previous inspection of licencers, but from the subsequent penalty of laws. . . . A further difference between the two governments was also insisted on. In Great-Britain, it is a maxim, that the king, an hereditary, not a responsible magistrate, can do no wrong; and that the legislature, which in two thirds of it's composition, is also hereditary, not responsible, can do what it pleases. In the United States, the executive magistrates are not held to be infallible, nor the legislatures to be omnipotent; and both being elective, are both responsible. That the latter may well be supposed to require a greater degree of freedom of animadversion than might be tolerated by the genius of the former. That even in England, notwithstanding the general doctrine of the common law, the ministry, who are responsible to impeachment, are at all times animadverted on, by the press, with peculiar freedom. That the practice in America must be entitled to much more respect: being in most instances founded upon the express declarations contained in the respective constitutions, or bill of rights of the confederated states5 . That even in those states where no such guarantee could be found, the press had always exerted a freedom in canvassing the merits, and measures of public men of every description, not confined to the limits of the common law. That on this footing the press has stood even in those states, at least, from the period of the revolution.

The advocates and supporters of the act alleged, fourthly; That had the constitution intended to prohibit congress from legislating at all, on the subject of the press, it would have used the same expressions as in that part of the clause, which relates to religion, and religious tests; whereas, said they, there is a manifest difference; it being evident that the constitution intended to prohibit congress from legislating at all, on the subject of religious establishments, and the prohibition is made in the most express terms. Had the same intention prevailed respecting the press, the same expression would have been used, viz. "Congress shall make no law respecting the press." They are not, however, prohibited, added they, from legislating at all, on the subject, but merely from abridging the liberty of the press. It is evident, therefore, said they, that congress may legislate respecting the press: may pass laws for it's regulation, and to punish those who pervert it into an engine of mischief, provided those laws do not abridge it's liberty. A law to impose previous restraints upon the press, and not one to inflict punishment on wicked and malicious publications, would be a law to abridge the liberty of the press6 .

To this it was answered, that laws to regulate, must, according to the true interpretation of that word, impose rules, or regulations, not before imposed; that to impose rules is to restrain; that to restrain must necessarily imply an abridgment of some former existing rights, or power: consequently, when the constitution prohibits congress from making any law abridging the freedom of speech, or of the press, it forbids them to make any law respecting either of these subjects. That this conclusion was an inevitable consequence of the injunction contained in the amendment, unless it could be shown, that the existing restraints upon the freedom of the press in the United States, were such as to require a remedy, by alaw regulating (but not abridging) the manner in which it might be exercised with greater freedom and security. A supposition, which it was believed no person would maintain. That the necessary consequence of these things is, that the amendment was meant as a positive denial to congress, of any power whatever, on the subject.

As an evidence on this subject, which must be deemed absolutely conclusive, it was observed, That the proposition of amendments made by congress, is introduced in the following terms: "The conventions of a number of states, having, at the time of their adopting the constitution, expressed a desire, in order to prevent misconstruction, or abuse of its powers, that further declaratory and restrictive clauses should be added; and, as extending the ground of public confidence in the government, will best ensure the beneficent ends of it's institution:" which affords the most satisfactory and authentic proof, that the several amendments proposed, were to be considered as either declaratory, or restrictive; and whether the one or the other, as corresponding with the desire expressed by a number of states, and as extending the ground of public confidence in the government. That under any other construction of the amendment relating to the press, than that it declared the press to be wholly exempt from the power of congress . . . the amendment could neither be said to correspond with the desire expressed by a number of the states, nor be calculated to extend the ground of public confidence in the government. Nay more; that the construction employed to justify the "Sedition Act," would exhibit a phaenomenon without a parallel in the political world. It would exhibit a number of respectable states, as denying first that any power over the press was delegated by the constitution; as proposing next, that an amendment to it should explicitly declare, that no such power was delegated; and finally as concurring in an amendment actually recognizing, or delegating such a power.

But, the part of the constitution which seems to have been most recurred to, and even relied on, in defence of the act of congress, is the last clause of the eighth section of the first article, empowering congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof7 ."

To this it was answered, that the plain import of that clause is, that congress shall have all the incidental, or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. That it is not a grant of new powers to congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant. Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly incidental to an express power, and necessary to its execution. If it be, it may be exercised by congress. If it be not, congress cannot exercise it. . . . That, if the sedition law be brought to this kind of test, it is not even pretended by the framers of that act, that the power over the press, which is exercised thereby, can be found among the powers expressly vested in congress. That if it be asked, whether there is any express power, for executing which, that act is a necessary and a proper power: the answer is, that the express power which has been selected, as least remote from that exercised by the act, is the power of "suppressing insurrections;" which is said to imply a power to prevent insurrections, by punishing whatever may lead, or tend to them. But it surely cannot, with the least plausibility, be said, that a regulation of the press, and the punishment of libels, are exercises of a power to suppress insurrections. That if it be asked, whether the federal government has no power to prevent, as well as punish, resistance to the laws; the proper answer is, that they have the power, which the constitution deemed most proper in their hands for the purpose. That congress has power, before it happens, to pass laws for punishing such resistance; and the executive and judiciary have a power to enforce those laws, whenever it does actually happen. That it must be recollected by many, and could be shewn to the satisfaction of all, that this construction of the terms "necessary and proper," is precisely the construction which prevailed during the discussions and ratifications of the constitution; and that it is a construction absolutely necessary to maintain their consistency with the peculiar character of the government, as possessed of particular and defined powers only; not of the general and indefinite powers vested in ordinary governments. That if this construction be rejected, it must be wholly immaterial, whether unlimited powers be exercised under the name of unlimited powers, or be exercised under the name of unlimited means of carrying into execution limited powers.

To those who asked, if the federal government be destitute of every authority for restraining the licentiousness of the press, and for shielding itself against the libellous attacks which may be made on those who administer it; the reply given was, that the constitution alone can answer the question: that no such power being expressly given; and such a power not being both necessary and proper to carry into execution any express power; but, above all, such a power being expressly forbidden by a declaratory amendment to the constitution, the answer must be, that the federal government is destitute of all such authority8 .

This very imperfect sketch may be sufficient to afford the student some idea of the magnitude and importance of a question, which agitated every part of the United States, almost to a degree of convulsion: the controversy not being confined to the closets of speculative politicians, or to the ordinary channels of discussion through the medium of the press; but engrossing the attention, and calling forth the talents and exertions of the legislatures of several of the states in the union, on the one hand, and of the federal government, and all its branches, legislative, executive, and judiciary, on the other. For no sooner had the act passed, than prosecutions were commenced against individuals in several of the states: they were conducted, in some cases, with a rigour, which seemed to betray a determination to convert into a scourge that, which it had been pretended was meant only to serve as a shield.

The state of Kentucky was the first which took the act under consideration, and by a resolution passed with two dissenting voices only, declared the act of congress not law, but altogether void, and of no force. The state of Virginia, though posterior to her younger sister in point of time, was not behind her in energy.

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Answers were received from the legislatures of seven states, disapproving of the resolutions of Virginia and Kentucky, which had also been transmitted with a similar proposition. The general assembly of Massachusetts, alone, condescended to reason with her sister states; the others scarcely paid them the common respect that is held to be due from individuals, to each other. The assembly of Virginia at their next session, entered into a critical review and examination of their former resolutions, and supported them by a train of arguments, and of powerful, convincing, and unsophistic reasoning, to which, probably, the equal cannot be produced in any public document, in any country9 . They concluded this examination and review (which occupied more than eighty pages) with resolving, "That having carefully and respectfully attended to the proceedings of a number of the states, in answer to their former resolutions, and having accurately and fully re-examined and re-considered the latter, they found it to be their indispensible duty to adhere to the same, as founded in truth, as consonant with the constitution, and as conducive to its preservation; and more especially to be their duty, to renew, as they do hereby renew their protest against the alien and sedition acts, as palpable and alarming infractions of the constitution."

Mean time, petitions had been presented to congress for the repeal of those obnoxious acts: on the 25th of February 1799, congress agreed to the report of a committee advising them, that it would be inexpedient to repeal them. A majority of four members, only, prevailed on this occasion. During the session which succeeded, strenuous exertions were made for the continuance of the act commonly called the sedition act, (the other concerning aliens, having expired:) After a severe struggle, the attempt failed, and the act was permitted to expire, at the same moment that put a period to the political importance of those, for whose benefit, alone, it seems to have been intended. . . .

It may be asked, perhaps: is there no remedy in the United States for injuries done to the good fame and reputation of a man; injuries, which to a man of sensibility, and of conscious integrity, are the most grievous that can be inflicted; injuries, which when offered through the medium of the press, may be diffused throughout the globe, and transmitted to latest posterity; may render him odious, and detestable in the eyes of the world, his country, his neighbours, his friends, and even his own family; may seclude him from society as a monster of depravity, and iniquity; and even may deprive him of sustenance, by destroying all confidence in him, and discouraging that commerce, or intercourse with him, which may be necessary to obtain the means?

Heaven forbid, that in a country which boasts of rational freedom, and of affording perfect security to the citizen for the complete enjoyment of all his rights, the most valuable of all should be exposed without remedy, or redress, to the vile arts of detraction and slander! Every individual, certainly, has a right to speak, or publish, his sentiments on the measures of government: to do this without restraint, control, or fear of punishment for so doing, is that which constitutes the genuine freedom of the press. The danger justly apprehended by those states which insisted that the federal government should possess no power, directly or indirectly, over the subject, was, that those who were entrusted with the administration might be forward in considering every thing as a crime against the government, which might operate to their own personal disadvantage; it was therefore made a fundamental article of the federal compact, that no such power should be exercised, or claimed by the federal government; leaving it to the state governments to exercise such jurisdiction and control over the subject, as their several constitutions and laws permit. In contending therefore for the absolute freedom of the press, and its total exemption from all restraint, control, or jurisdiction of the federal government, the writer of these sheets most explicitly disavows the most distant approbation of its licentiousness. A free press, conducted with ability, firmness, decorum, and impartiality, may be regarded as the chaste nurse of genuine liberty; but a press stained with falsehood, imposture, detraction, and personal slander, resembles a contaminated prostitute, whose touch is pollution, and whose offspring bears the foul marks of the parent's ignominy.

Whoever makes use of the press as the vehicle of his sentiments on any subject, ought to do it in such language as to shew he has a deference for the sentiments of others; that while he asserts the right of expressing and vindicating his own judgment, he acknowledges the obligation to submit to the judgment of those whose authority he cannot legally, or constitutionally dispute. In his statement of facts he is bound to adhere strictly to the truth; for any deviation from the truth is both an imposition upon the public, and an injury to the individual whom it may respect. In his restrictures on the conduct of men, in public stations, he is bound to do justice to their characters, and not to criminate them without substantial reason. The right of character is a sacred and invaluable right, and is not forfeited by accepting a public employment. Whoever knowingly departs from any of these maxims is guilty of a crime against the community, as well as against the person injured; and though both the letter and the spirit of our federal constitution wisely prohibit the congress of the United States from making any law, by which the freedom of speech, or of the press, may be exposed to restraint or persecution under the authority of the federal government, yet for injuries done the reputation of any person, as an individual, the state-courts are always open, and may afford ample, and competent redress, as the records of the courts of this commonwealth abundantly testify.

  1. De Lolme on the English constitution. 317. Phila. printed.

  2. Letter from the American envoys to the French minister of foreign affairs. This nervous passage bespeaks its author [John Marshall]; a gentleman who now fills the highest judicial office under the federal government.

  3. Bill of Rights agreed to by the convention of Virginia, by which the C. U. S. was adopted Art. 16.

  4. C. U. S. as ratified by the convention of Virginia.

  5. See the Virginia bill of rights, Art. 12. Massachusetts, Art. 16. Pennsylvania, Art. 12. Delaware, Art. 23. Maryland, Art. 38. North-Carolina, Art. 15. South-Carolina, Art. 43. Georgia, Art. 61. The constitution of Pennsylvania, Art. 35, declares, "That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature or any part of the government. And, the bill of rights of Vermont, Art. 15, is to the same effect.

  6. See the report of a committee of congress, to whom were referred several petitions for the repeal of the alien and sedition laws. February 25, 1799.

  7. See the report of a committee of congress, Feb. 25, 1799; and the answer of the senate and house of representatives of Massachusetts, (Feb. 9th and 13th, 1799), to the communications from the state of Virginia, on the subject of the alien and sedition laws.

  8. In the preceding sketch of the arguments used to demonstrate the unconstitutionality of the act of congress, I have extracted a few of those contained in the report of the committee of the house of delegates of Virginia, agreed to by the house, Jan. 11, 1800, and afterwards concurred in by the senate. This most valuable document is very long, and is incapable of being abridged, without manifest injury.

  9. See the report of the committee, on this subject, agreed to in the house of delegates, Jan. 11, 1800.

The Founders' Constitution
Volume 5, Amendment I (Speech and Press), Document 27
The University of Chicago Press

Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.

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