The Myth of The First Amendment
The Myth of The First Amendment
How the United States really became a bastion of free speech
The below is a reply, not necessarily a riposte, to those who have been calling for a First Amendment in the UK. Historian and fellow Substacker Ed West is one of the most prominent ‘First Amenders’. Though Ed is on the political right, left-wing publications such as Prospect Magazine have previously backed such a move. This essay explores the true history of the First Amendment, ultimately explaining why US Courts, jurors and judges have done more for free speech and expression in the ‘American republic’ (you will understand later why this is a loaded phrase) rather than the 45-word-long addition to the US Constitution by itself.
Corruption, blood and fear are the real driving forces behind the United States’ free speech absolutism. The First Amendment, now held aloft by modern campaigners as a bastion of libertarianism, is actually gloriously vague and limited in its scope. It was framed as part of a dispute between Northern and Southern elites, who were split respectively into pro-Federalist and anti-Federalist camps.
George Mason, a reluctant politician, planter and author of the Virginia Declaration of Rights (much of which was lifted into the Declaration of Independence), was one of the first prominent campaigners for what was later described from 1941 onwards as the Bill of Rights.
He attended the Constitutional Conventions in 1787 and 1788, but Mason was one of three delegates who refused to sign the document. Initially an advocate for the creation of a national government, Mason soured on the project, warning that the proposed Constitution could usher-in a temporary dictator.
“His government will set out a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other,” Mason wrote.
He produced at least 16 arguments against the Constitution, including a proposed declaration to maintain the liberty of the press. His cause was later taken up by fellow Virginians Thomas Jefferson and James Madison, who had at one time actually criticised a potential freedom of the press clause as a “paper barrier” which wouldn’t last.
The Federalists, especially Alexander Hamilton, had forcefully argued that the addition of the clause was unnecessary and potentially dangerous. The New Yorker wrote in Federalist No. 83:
“They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
Despite Hamilton’s protests, Madison successfully argued for the amendment to be added to the Constitution during the First Congress of 1789 (it was later ratified with the rest of the Bill of Rights in 1791). This wasn’t just a victory for the anti-Federalists, but also for the radical Whig tradition they were following in.
English Origins
Drawing on John Locke, who helped defeat the reinstatement of the Licencing Act in the post-Glorious Revolution parliament of 1695, John Milton’s pro-free speech Areopagitica (1644) and the Cato Letters (1720 - 23), which described the freedom of the press as “bulwark of liberty” as its authors railed against Robert Walpole’s corrupt ministry, the First Amendment codified enlightenment ideals which had been brewing for at least 100 years.
But its adoption didn’t simply mean that American citizens were able to say or write what they wanted thanks to the 45-word-long amendment. As Fife-born Founding Father James Wilson explained during the ratification debates, “...every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual”.
Instead, it was widely recognised that freedom of expression had a limit and matters of libel and sedition should be dealt with by a jury trial. “Should I be unjustly accused of [sedition], the trial by a jury of my countrymen is my security,” Virginia lawyer Alexander White put it.
The Zenger Case
Linking jury rights with the freedom of speech in early post-colonial America made a lot of sense. Some of the Founding Fathers would have been familiar with the trial of John Zenger in 1735.
The case became a cause célèbre for press freedoms in the 13 colonies after Zenger, a publisher of The New York Weekly Journal, was taken to court by the British-backed Governor of New York, William Cosby, for seditious libel.
Notably, there was no truth defence for this crime at the time. So even if Zenger was telling the truth about Cosby’s apparent misdeeds, he still faced jail. The judge presiding over the case subsequently directed the jurors to pass a guilty verdict.
But star Philadelphian attorney Andrew Hamilton successfully pleaded to the jury to save Zenger. “It is not the cause of one poor printer, nor of New York alone, which you are now trying,” he declared. “No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty.”
The jurors ignored the judge and listened to Hamilton, acquitting Zenger. The impact of the case was enormous. According to historian Michael Kent Curtis, no one was convicted in the American colonies of seditious libel after the trial. And even after the Constitution and the Bill of Rights was ratified, the Zenger case still had relevance.
Party Politics is Born
By the 1790s the anti-Federalist cause of Jefferson and Madison evolved into the ‘anti-Administration faction’ as they opposed the centralising policies of Alexander Hamilton, the US’ first ever Secretary of the Treasury under George Washington.
Jefferson and Madison particularly opposed Hamilton’s proposal to establish a national bank and his approach to tackle the newly formed country’s massive debts.
What is now known as the Democratic-Republican Party was subsequently formed in 1792 in a bid to unseat Federalist John Adams as Vice-President in the elections of that year. Their candidate New Yorker Governor George Clinton failed to usurp the “monarchical” Adams.
Foreign affairs added fuel to the party political fires when the Jay Treaty between the US and Britain was signed in November 1794. Designed to foster peaceful trade between the nations and end unresolved issues of the Revolutionary War not dealt with by the Treaty of Paris, the agreement enraged France.
Despite being an established ally of the United States, the French Revolution, including the execution of King Louis XVI and its Reign of Terror (ending in July of 1794), began to worry the Americans.
Though the US remained neutral, a series of disputes and privateering on France’s behalf (the US Navy was effectively non-existent) would eventually lead to an unofficial war between the nations, known as the Quasi-War, kicking off in 1798 – around 18 months into Adams’ Presidency.
It was in this context that Adams narrowly passed the Alien and Sedition Acts of 1798. The legislation made it easier for the Federal Government to deport people (there were worries that revolutionary Frenchmen were seeking to infiltrate the US) and it made it a crime to "print, utter, or publish...any false, scandalous, and malicious writing" against the government.
In reality that meant pro-Jefferson papers were targeted by the government and prosecuted. The argument about free speech was ignited once again. The Federalists argued that the First Amendment only went as far as prior restraint and, reflecting a common law tradition of England, people could be criminalised for their writings and speech.
In the spirit of the Zenger case, The Democratic-Republican Party argued for full freedom of speech. Jefferson, in his Kentucky Resolution of 1798, also argued that freedom of speech and express matters were outside of the scope of the Federal Government because of the First Amendment.
Instead, state courts with their own jurors should preside over these matters. The Democratic-Republicans were worried that Federal Grand Juries were being stuffed with pro-Federalists jurors.
Madison took the argument for free speech further in his Report of 1800. Drawing on the Declaration of Independence, Articles of Confederation and the Constitution, he argued that the United States had a different form of government to England since sovereignty came from the people and not Parliament (via the royal prerogative).
It subsequently meant that the executive and legislator had in-built limitations. “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 licensers, but from the subsequent penalty of laws,” he wrote.
Thanks to the unpopularity of the Alien and Sedition Acts, Adams’ alignment with Britain and Jefferson’s ‘spirit of ‘76’ ticket, the Democratic-Republicans won the presidency in 1800, with Jefferson taking office in 1801. He would pardon the printers persecuted by the Adams ministry, while Madison would succeed him as President in 1809.
To this very day, it’s a matter of scholarly debate as to what the Founding Fathers actually intended when they framed and ratified the First Amendment. It was the politically-charged battle for free speech after the passing of the clause, including judges’ interpretations of the amendment over the centuries, which turned the United States into a free-speech outlier.
Fraud, false advertising, true threats and defamatory speech are still not covered by the amendment. And on incitement to riot? It all depends intent and immediacy.
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