Liberty and the First Amendment: 1790-1800

Abstract

IN I798 there was a sudden break-through in American libertarian thought on freedom of speech and press-sudden, radical, and transforming, like an underwater volcano erupting its lava upward from the ocean floor to form a new island. The Sedition Act, which was a thrust in the direction of a single-party press and a monolithic party system, triggered the Republican surge. The result was the emergence of a new promontory of libertarian thought jutting out of a stagnant Blackstonian sea. To appreciate the Republican achievement requires an understanding of American libertarian' thought on the meaning and scope of freedom of political discourse. Contrary to the accepted view,2 neither the Revolution nor the First Amendment superseded the common law by repudiating the Blackstonian concept that freedom of the press meant merely freedom from prior restraint. There had been no rejection of the concept that government may be criminally assaulted, that is, seditiously libeled, simply by the expression of critical opinions that tended to lower it in the public's esteem. To be sure, the principle of a free press, like flag, home, and mother, had no enemies. Only seditious libels, licentious opinions, and malicious falsehoods were condemned. The question, therefore, is not whether freedom of the press was favored but what it meant and whether its advocates would extend it to a political opponent whose criticism cut to the bone on issues that