Founders’ view of freedom of speech and the press

For a century or more, judges, academics, politicians, news personalities and everyday Americans have debated just what the First Amendment’s protection of freedom of speech means.

Is it primarily concerned with political speech? Does it give the press special privileges? What about demonstrations, flag burnings, profanity, movies, cable, the internet?

To find out what the Founders of the country believed, we just have to look at what came out of their mouths.

In 1774, the First Continental Congress met in Philadelphia to organize a coordinated resistance to the latest oppressions by the British Parliament. In particular, the Americans were outraged by the “Intolerable Acts,” which, in response to the Boston Tea Party, had closed the port of Boston, put the colony of Massachusetts directly under the control of the Crown, allowed for the quartering of troops in homes, and provided for trial in England of royal officials accused of crimes.

That Congress put forward a comprehensive list of “Declarations and Resolves,” authored by John Dickinson, that declared the rights of the colonists and condemned the depredations of those rights by Parliament. That document would lead to the Declaration of Independence two years later.

At the same time, the Congress sent a “Letter to the Inhabitants of Quebec,” also authored by John Dickinson, in hopes of convincing the French Catholics there of the righteousness of the American resistance. In that letter, Dickinson listed a number of rights that the Americans were defending.

And now we come to the crux of it:

“The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.”

Let us look at the breadth and depth of this right.

“The advancement of truth, science, morality, and arts in general.” This not a mere self-expressive right, but a truth seeking right, a right bottomed on natural law and those fundamental goods that every person is entitled to pursue.

“Its diffusion of liberal sentiments on the administration of Government.” Freedom of the press will persuade those in government to work for the common good, and not for their own advantage. In the words of the time, freedom of the press will promote public virtue.

“Its ready communication of thoughts between subjects, and its consequential promotion of union among them.” Dickinson, who was the most prolific of writers defending the American cause, had seen how his own works, as well as those of other Founders, had brought together this most disparate people from Massachusetts to Georgia, from artisans to planters, from seafarers to back country folks, in a common cause. Freedom of the press had begun to shape colonists into a nation, an American nation.

“Whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.” Men prefer to commit their sins in private, to deny, dissimulate, deflect or defuse. But freedom of the press is a rod on those in authority so that they will put aside their passions and conduct themselves as true representatives of the people.

There was no more authoritative writer in the Revolutionary generation than John Dickinson. He authored the resolves of the Stamp Act Congress, the Resolutions of the First Continental Congress, Letters from a Farmer in Pennsylvania, Declaration of the Causes and Necessity for the Taking up of Arms (with Jefferson), the Olive Branch Petition, as well as the Letter to the Inhabitants of Quebec. Although he did not sign the Declaration of Independence, he was the first after Washington to take up arms in defense of the new nation. He drafted the Articles of Confederation, was a delegate to the Constitutional Convention, and authored a number of essays in defense of the Constitution. We can be assured that he spoke for the other Founders.

Although there would be abuses against Tory printers during the Revolution, and although the line between protected and illegal speech would continue to require careful consideration, we know, nonetheless, that for the Founders, freedom of speech was a commodious right. It is a truth-seeking right. It inheres in the nature of man and is essential to his pursuit of happiness.

• David F. Forte, Ph.D., is professor of law at Cleveland State University and the Garwood Visiting Professor at Princeton University.