The real origins of American freedom of speech

Why did British and American speech laws diverge?

The widely understood narrative of how America came to have freedom of speech goes something like this: ‘In 1776, America declared independence from Britain. Under the Stars and Stripes, Americans enjoyed the blessings of the Constitution. The First Amendment states that “Congress shall make no law abridging the freedom of speech or of the press”. That is why Americans can write whatever they like online, however violent or offensive, without fear of arrest. Americans are also free from British libel legislation. They are free to post any allegation they like about a public figure without fear of being sued.’

For the British, this often leads to hand-wringing about whether we need a written constitution; or, perhaps, a feeling that there is something inherently wrong with our institutions.

The problem is that this framing is nonsense.

American free speech really arrives much later than the writing of the Constitution, and largely rests on two ’60s Supreme Court cases that radically broke with a fundamentally shared British and American legal tradition: New York Times Co. v. Sullivan (1964) and Brandenburg v. Ohio (1969). In these cases, an activist Supreme Court deliberately parted ways with centuries of Anglo-American law to impose freedom of speech from above. Modern American free speech was not born with the minutemen in 1776, or with the Bill of Rights in 1789, but was effectively invented by a liberal cadre in the ’60s trying to help the Civil Rights movement succeed.

If we want to restore freedom of speech in Britain, we need to look at how the Americans actually did it, rather than listening to braggadocio about gun-toting hillbillies.

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For most of American history, the majority of American states had libel laws identical to Britain relating to defamation and slander.¹ In addition, by 1950, seven states had ‘group libel’ (i.e., hate speech) laws, and several other large cities had the same.²

In 1950, Joseph Beauharnais handed out leaflets in Chicago. The leaflets called on white people to unite against being ‘mongrelised by the negro’. He was arrested, fined, and convicted under an Illinois law which made it illegal to expose other races to ‘contempt or obloquy’.³ The Supreme Court in Beauharnais v. Illinois (1952) found this to be legal under the First Amendment, with Justice Frankfurter remarking that such laws were justified in curbing the ‘…false or malicious defamation of racial and religious groups’.⁴ Nor was it just whites who were subject to these laws: also in 1950, the black journalist John Henry McCray published an article in the Lighthouse and Reformer newspaper questioning the testimony of a girl in a recent rape trial. He was charged with criminal libel under the laws of South Carolina for defaming the girl’s character. Facing an apparently hopeless case, under which he could have faced one year on a chain gang, he pleaded guilty. He was fined $3,000 and given a suspended sentence with three years’ probation. After leaving South Carolina without permission (something he disputed) to give a speech in Illinois, thus breaking his probation terms, he was sent onto a chain gang for a little over a month. The following year, in Feiner v. New York (1951), the Supreme Court upheld the arrest of a man for Breach of the Peace who stood on a street corner and called for blacks to rise up in arms against white people.⁵

Speech restrictions reached beyond the thorny topic of American race relations. In Dennis v. United States (1951), the Supreme Court upheld the conviction of Communist Party members for breaching the Smith Act (1940).⁶ This Act criminalised anyone who advocated for the overthrow of the American government. There was no evidence whatsoever that they had actually done this, except implicitly (insofar as they were Communists). They were sentenced to five years in prison. In his judgment upholding their convictions, Supreme Court Justice Fred M. Vinson wrote:

The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. The Massachusetts Constitution of 1780 guaranteed free speech; yet there are records of at least three convictions for political libels obtained between 1799 and 1803. The Pennsylvania Constitution of 1790 and the Delaware Constitution of 1792 expressly imposed liability for abuse of the right of free speech.

This was not new. Three decades prior, during the first Red Scare in the aftermath of the Great War, thousands of Americans were arrested under Criminal Syndicalism laws, aimed at repressing radical socialists.⁷ The California Criminal Syndicalism Act (1919) made the membership of a group which advocated force or crime as a means of political change illegal. The case of Charlotte Whitney is representative. She had given a speech in 1919 in Oakland, California on ‘The Negro Problem’, which opposed lynching. She was then arrested on the unrelated grounds that she was a member of the Communist Labor Party and associated with the IWW (the Industrial Workers of the World, an international labour union). She was sentenced to one to fourteen years in prison.⁸ In 1926, the Supreme Court upheld this as constitutional, bluntly stating:

But, although the rights of free speech and assembly are fundamental, they are not, in their nature, absolute. Their exercise is subject to restriction if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic, or moral.⁹

If we go back a little further, during America’s period of involvement in the First World War (1917-8), we can see that the United States entered a period of genuinely sinister repression. Under the Montana Sedition Act (1918), seventy-nine people in that state were sent to prison for speech offences, some for sentences of twenty years (later commuted). In 1918, Earnest V. Starr refused to kiss the American flag when pressured to buy some Liberty Bonds. He referred to the flag as ‘a piece of cotton with a little paint on it’. He declined to kiss it, and said ‘it might be covered with microbes’. He was sentenced to ten to twenty years imprisonment. Fay Rumsey, a man with a wife and twelve children, hassled by horse rustlers, said that he ‘wished the Germans would come in and clean up the U.S. and especially Sarpy Creek’. He was sentenced to two to four years. His farm was sold. His children were sent to orphanages or other families. Their descendants did not start to find each other until the late ’90s. Similarly, ‘…a traveling salesman for a wine company was found guilty for having called wartime food regulations “a big joke”… he was sentenced to from seven and one-half to twenty years at hard labor’.¹⁰

This Montana law was then adopted nearly word-for-word by Congress and applied nationally. Under what is popularly known as the Sedition Act of 1918 (in fact a series of amendments expanding the Espionage Act of 1917), nearly two-thousand people were convicted for using ‘disloyal, profane, scurrilous, or abusive language’ about the United States; or language which caused American institutions to be held in contempt; or language which advocated ‘the curtailment of production’ of things necessary to the prosecution of the war.¹¹ Those convicted were routinely given ten-to-twenty-year sentences.¹² The socialist politician Eugene Debs made a speech to a large crowd after visiting men who had been jailed for violating the aforementioned Espionage Act of 1917. The Espionage Act made it illegal to convey information that interfered with the war effort. Debs said that those men were ‘paying the penalty... for seeking to pave the way to better conditions for mankind’. He was then himself arrested and sentenced to ten years imprisonment under the very same Espionage Act — a judgment which the Supreme Court upheld.¹³

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As we have seen, then, until as late as the ’60s, the First Amendment categorically did not defend absolute freedom of speech. To understand how Americans first followed, then eventually came to depart from this point of view, we should begin by looking at the historical background to freedom of speech in both Britain and the United States.

In Europe at the beginning of the eighteenth century, only England and the United Provinces enjoyed freedom of the press. This term had a slightly different meaning in the past. It only meant that there were no prior restraints on the publication of documents. Before the expiry of the Licensing Act in 1695, every book or newspaper in England had to undergo vetting at the hand of a censor prior to publication. When John Milton argued in Areopagitica for the freedom of the press, he was explicitly arguing for the removal of pre-publication censorship, like in the contemporary Netherlands. He was certainly not arguing for the removal of post-publication censorship. He supported the state prosecuting people for libel, obscenity, and sedition in order to ‘confine, imprison, and do sharpest justice on them as malefactors’.¹⁴

Once the Licensing Act expired in 1695, Milton’s desired position was secured. In both countries, unlike the rest of Europe — barring Sweden for a brief period in the late-eighteenth century — there was no pre-publication censorship. While this would not be impressive today, this was a high state of freedom for the time. The contrast with the rest of Europe was noticeable. In Spain, the Inquisition controlled, censored, and burned works. In France, one-third of works between 1706 and 1788 ‘did not receive explicit authorization’ for publication.¹⁵ In the eighteenth century, John Wilkes — like many others — may have faced prosecution for blasphemous, obscene, and seditious libels, but he was at least able to publish in the first place. A raucous and liberty-minded people enjoyed a freedom of discussion unknown in the rest of Europe, regardless of the potential dangers of prosecution. As David Hume said in 1741:

Nothing is more apt to surprise a foreigner, than the extreme liberty, which we enjoy in this country, of communicating whatever we please to the public, and of openly censuring every measure, entered into by the king or his ministers.¹⁶

The prevailing situation was best summed up by Sir William Blackstone in the Laws of England (1769). Blackstone was read widely in the American colonies, and his understanding of the ‘liberty of the press’ was accepted by most Americans:

The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman 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 consequence of his own temerity... Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.

It should be unsurprising that when the American Constitution was being drafted in 1788, this was the position in Britain and in the United States. While pre-publication restraints had been done away with, there still were — at least in theory — many post-publication restraints in both countries. To give one example: in 1788, before the American Constitution was ratified, the Supreme Court of Pennsylvania upheld a libel case. They stated that where publications attempt to ‘delude and defame... it is impossible that any good government should afford protection and impunity’. This was despite the Pennsylvania Constitution clearly stating that ‘…the freedom of the press shall not be restrained’.¹⁷

This was how Americans contemporary to the drafting of the Constitution understood freedom of speech. Under Blackstone’s interpretation of the law, there was a freedom to publish. If you wrote something that offended public morals, you could then be prosecuted for the Common Law offences of blasphemous, seditious, or obscene libel. In both countries, juries could use their own judgement as to whether or not to convict the accused. When James Madison’s initial draft, slightly more descriptive¹⁸ but not substantially different, was changed by committee to ‘Congress shall make no law… abridging the freedom of speech, or of the press’, there was also no expectation that this would apply to the individual states, each of which differed in speech legislation.

The first real watershed came in 1798, when Congress passed the Alien and Sedition Acts in response to the fear of French revolutionary sedition. Members of Congress, publishers, and pamphleteers were arrested and convicted using very broadly-worded legislation that criminalised things such as ‘false, scandalous and malicious writing or writings against the government of the United States’.¹⁹ This was opposed by both Thomas Jefferson and James Madison. Madison, as the original framer of the First Amendment, argued that post-publication restrictions on the press were a menace to liberty. He claimed, contrary to Blackstone’s rather narrow view of press freedoms, that even post-publication censorship, through libel laws, had a per se stifling effect on freedom of expression. He denied that the Common Law punishments of libel applied to America, a country where the people were sovereign.

Many Americans disagreed with Madison, noting that the Blackstone view of press liberty had always been accepted in the American colonies. They rightly pointed out that the wording of the Constitution itself supported this.²⁰ Much of Madison’s argument was simply that Congress — rather than the states themselves — had no power to censor speech.²¹ The objectionable Acts themselves were repealed when Thomas Jefferson became President in 1801. He pardoned those who had been convicted. However, it is important to emphasise here that the Supreme Court never judged the Acts themselves to be illegal. Despite Madison and Jefferson’s personal views, the narrow, ‘Blackstonian’ view of press freedom had legally prevailed.

It should thus be no surprise that the First Amendment, just as it failed to prevent speech restrictions during and after the Great War, also failed to prevent Abraham Lincoln from suspending the freedom of the press during the American Civil War. There was no constitutional right to freedom of speech, as meant in the modern sense, in nineteenth-century America. The First Amendment did not protect you from being sued for defamation. It did not protect you from being prosecuted for criminal libel. It did not protect you from being prosecuted for blasphemy, obscenity, or sedition. It did not overrule statute law that punished speech.

There was a small but important break with Common Law at the beginning of the nineteenth century, as individual states began to accept that truth was a defence to a libel claim. Previously, this had not been accepted, as the damage to reputation — regardless of truth — was held to be the real crime.²² This was soon matched by Britain in 1843, where the Libel Act made truth a defence in a libel case.²³ The two countries remained on the same path.

There was a brief repressive period in Britain at the beginning of the nineteenth century. Successive governments used seditious libel prosecutions in an attempt to defeat radicalism. Publishers were imprisoned. People who criticised government policy were prosecuted. But by the 1820s, this position began to relax. Juries, which played a central role in regulating government actions relating to speech, were increasingly unwilling to convict. Prosecutions became counterproductive as offending newspaper articles were simply reprinted in coverage of the trial by the press. Stamp duties designed to lessen the circulation of radical newspapers were lowered, and then finally abolished in 1855.²⁴ Once again, the two countries remained on roughly the same path.

In 1818, the American Richard Rush had noted the difference between the theory and the practice of British libel legislation:

There are countries in which the press is more free, by law, than with the English; for although they impose no previous restraints, their definition of libel is inherently vague. But perhaps nowhere has the press so much latitude.²⁵

When Americans visited Britain during the nineteenth century, they did not think of it as a less free country. If they talked of freedom, they meant social freedom. They disliked the class system and the still-pervasive sense of hierarchy. They often disliked the established church. But they did not think that it was despotic, or that they enjoyed greater freedom of speech at home.²⁶ In theory, the laws against seditious libel could have been rigorously enforced in either country. But in practice, as A.V. Dicey noted with regards to Britain, this would have been ‘…inconsistent with prevailing forms of political agitation’. Freedom of discussion really meant ‘…little else than the right to say or write anything, which a jury, consisting of twelve shopkeepers, think it expedient should be said or written’.²⁷ In practical terms, both countries enjoyed a level of freedom of speech higher than anywhere else on earth.

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It was partly as a consequence of the Great War, and partly as a consequence of the Civil Rights movement, that judicial activism in the United States caused the two countries to diverge.

In response to the First World War, both Britain and the United States passed wartime legislation which heavily restricted personal liberty. In Britain, the Defence of the Realm Act 1914 gave the government broad powers to censor the press, imprison political dissenters, and impose restrictions on speech and public gatherings.²⁸ And, as discussed above, the Espionage and Sedition Acts gave the American government the power to imprison wartime dissenters; in fact, if anything, the sentences passed down were longer than in Britain. It was only at this point that a series of American judges, seemingly radicalised by the experience of wartime powers, began to see the First Amendment as a bulwark against tyranny.

Influenced by articles like Zechariah Chafee’s ‘Free Speech in Wartime’, Supreme Court justices like Oliver Wendell Holmes, Jr began to rethink the First Amendment. They were also influenced by John Stuart Mill’s arguments in On Liberty. They wanted to return to what they saw as the original Madisonian intent of the First Amendment. Holmes had previously supported the prosecution of people if their speech posed a ‘clear and present danger’. But in Abrams v. United States (1919), Holmes dissented from the judgment of the Court. He had previously supported the narrow interpretation of the First Amendment. Now he argued that the First Amendment supported a marketplace of ideas and that suppression of speech was wrong. While Holmes lost this time, his argument would prove to be extremely influential with future Supreme Court justices. Similarly, Justice Brandeis in his concurrence (joined by Holmes) in Whitney v. California (1927) argued that ‘…fear of serious injury cannot alone justify suppression of free speech and assembly’. They both made many very fine points. But in reality, these were philosophical, not legal arguments. They had nothing to do with the practice of the First Amendment since 1789. The stage was set for the Court to embark on a half-century of judicial activism.

In Gitlow v. New York (1925), the Supreme Court, while ruling against overturning the conviction of Gitlow (a Socialist politician) under New York’s Criminal Anarchy Law, also ruled that the Fourteenth Amendment’s Due Process clause applied to the First Amendment. The Supreme Court could now directly interfere with States on issue of freedom of speech. The Court now began to extend free speech protections at a state level. In Stromberg v. California (1931), the Supreme Court held that a California law which outlawed the display of the Red Flag was unconstitutional. In Near v. Minnesota (1931), the Court overruled the granting of an injunction to prevent an anti-Semitic newspaper from being published. This case is why the British super-injunction scandal of the ’10s could not happen in the United States.

In Bridges v. California (1941), the Supreme Court heard a contempt of court case. A union leader had sent a telegram to the US Secretary of Labor criticising a judge’s decision in a recent case, resulting in a contempt of court charge. In addition, they heard another case in which the Los Angeles Times had been held in contempt of court. The Los Angeles Times had published an editorial which said that the judge in an ongoing case would ‘make a serious mistake’ if he sentenced two men on trial to probation. The newspaper was fined. The Supreme Court was locked in debate. Justice Frankfurter noted that contempt was ‘…part and parcel of the Anglo-American system of administering justice... it is believed that all the judicatures of the English-speaking world... have from time to time recognized and exercised the power’.²⁹ He was completely justified in this and referred to case law. On the other hand, the free speech originalist Justice Black argued that the First Amendment overruled all of this. In a 5-4 majority, the Supreme Court reversed the convictions. This case and succeeding cases are why the American press can report on ongoing trials — like those of Lucy Letby or Axel Rudakubana — with much greater freedom than in Britain.

There was a brief period of retrogression during the Second Red Scare, with the Court upholding hate speech legislation and the provisions of the Smith Act. But from 1953 to 1969, under Chief Justice Warren, the Supreme Court embarked on its greatest ever period of liberalisation and judicial activism. This was the Court that desegregated America, liberalised contraception, and removed Christianity from public school classrooms. They were very obviously engaged in the business of legislating, and not jurisprudence. It was also the Court responsible for modern American free speech.

In 1960, the New York Times published an advertisment called ‘Heed Their Rising Voices’. It made a number of objectively false claims about the treatment of Civil Rights protesters in Montgomery, Alabama. The police commissioner, L.B. Sullivan, sued the New York Times for libel in Alabama. He was awarded $500,000 in damages. Throughout the South, there was then a flurry of libel cases directed against northern newspapers covering Civil Rights issues. The collective damages went into millions of dollars. Newspapers began to pull reporters out of the south. The case eventually reached the Supreme Court. Sullivan’s lawyer was confident of victory. He told his nervous client that in order to lose ‘…[the Supreme Court] would have to reverse 200 years of settled law’. It would be a ‘bomb-proof victory… either I will win the cases or they will change the law of the land’.³⁰

Changing the law of the land was exactly what they proceeded to do. In New York Times Co v. Sullivan (1964), a unanimous Supreme Court, issuing a judgment written by Justice Brennan, overruled the Alabama courts and invented a new doctrine in the process. The burden of proof was now reversed. No longer would the person being sued for libel have to prove the truth of their claim. Now the person libelled, if a public official, would have to prove that the libeller had acted with ‘actual malice’. This was completely invented. It had no basis in existing law. At one point, Brennan cited Areopagitica and John Stuart Mill’s On Liberty, documents that — while of their own value — are of no constitutional importance whatsoever. In the words of Clarence Thomas: ‘New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law’.³¹ The Court had effectively legislated to stop newspapers from being bankrupted in covering the Civil Rights struggle. Successive cases extended the actual malice standard to public figures as well as public officials. In practice, the threshold is now so high that the vast majority of libel cases in Britain could never be undertaken in the United States.

Then, in 1969, the Supreme Court heard the case of Brandenburg v. Ohio. Clarence Brandenburg, a Ku Klux Klan leader, was filmed making derogatory remarks about black and Jewish people. He called on them to return to their ethnic homelands and made remarks about ‘revengeance’ (sic) being taken if the ‘white, caucasian race’ continued to be suppressed. He was arrested under an Ohio anti-syndicalism law. The Supreme Court overturned the conviction. Justice Fortas wrote the judgement, but resigned before it could be issued. Justice Brennan, acting on his own initiative, replaced the words which Fortas had used to set the bar of incitement. Fortas used a variation of the ‘clear and present danger’ test. Brennan changed it so that speech could only be prosecuted if it was going to cause ‘imminent lawless action’. Once again, this was a wholly invented test. And once again, in practice, this is such a high threshold for incitement prosecutions that it can almost never be met — even the most bloodcurdling threats cannot meet this bar.

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For the great majority of their history — right up until the ’60s — Americans quite happily prosecuted, sued, and imprisoned each other for speech offences. There is nothing that could stop future Supreme Court Justices reversing or altering the thresholds in cases like New York Times v. Sullivan or Brandenburg v. Ohio. They would in fact be able to do so on impeccably correct grounds. They are no more ‘constitutional’ or ‘inherently American’ than Roe v. Wade was before its repeal in 2022.

While the liberal Warren Court could not have foreseen the dramatically changed political meaning of freedom of speech in 2025, it saved Americans from a recrudescence of the ‘Red Scares’ (or, as they would be today, ‘Brown Scares’) — periods where legislation curbing speech were either passed or were enforced. A lot of legislation, like those criminalising ‘group libels’, was rarely used. But they would have remained on the statute book, and future generations of politicians would have been able to enforce them, particularly once the arrival of the internet multiplied the offences. It’s clear that today there is no unanimity among Americans that speech should remain (nearly) absolutely free; it’s merely that they are currently legally shackled by the Supreme Court decisions of the ’60s. Many Americans — including many prominent and powerful Americans, such as Tim Walz, the former vice-presidential candidate — oppose the current interpretation of the First Amendment. Without the Warren Court’s championing of free speech, some states would no doubt still have been libertarian. But other states would have been able to prosecute speech offences on the same scale as European countries.

Let it be remembered that, when first enacted, the legislation used in Britain to prosecute people for speech offences was never designed or intended to curb freedom of expression to the extent that it has. The Malicious Communications Act 1988 refers to language ‘intended to cause distress or anxiety’. It was designed to deal with poison pen letters. Section 127 of the Communications Act 2003 makes it an offence to send messages of a ‘grossly offensive or of an indecent, obscene or menacing character’. But the origin of this law comes from legislation passed in the ’30s to stop people making obscene phone calls to women switchboard operators. Even the Public Order Act, which criminalises stirring up racial hatred and other speech offences, was designed to be used to quell riots. It is now used to arrest people who heckle royal proclamations. As late as 1989, before these laws were enforced on their present scale, it was possible for an American writer to conclude that in practice, Britain and the United States enjoyed broadly comparable freedoms of speech, despite the United States having many advantages.³² No-one could possibly argue that this is still the case, but the change is relatively recent.

For half a century, Americans have enjoyed the highest level of free speech in the world. But this was the product of decades of judicial activism. It is nothing to do with the original founding of America, or with the American Constitution in itself (at least not directly). If we in Britain want to enjoy American free speech, we are going to have to put the effort in and legislate. We are in no worse a position than the Americans used to be. The lesson from the America of 1919 to 1969 is that concerted effort can beat censorship. We do not have a Supreme Court, but we do have parliamentary sovereignty, and the ability to act swiftly. We should abolish almost all speech legislation, and then adopt the American threshold in cases of harassment. We should abolish libel. We should abolish Leveson and all restrictions on the freedom of the press. We should abolish contempt of court for reporting on trials. Ofcom should go the way of the Star Chamber. The Public Order Act should have every single speech provision removed. Perhaps there was a time when debating the precise thresholds would have been worthwhile. In practice, the judiciary, Parliament, and the police cannot be trusted. The existence of the Online Safety Act, with its absurd provisions for criminalising ‘false information’, is evidence of this.

And why not? The best arguments for freedom of speech are ours. Milton never intended Areopagitica to be an argument for unfettered freedom of speech. But it is, and the following remains as true now as it was in the seventeenth century:

Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?

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This article was written by an anonymous contributor. Have a pitch? Send it to pimlicojournal@substack.com.

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1. Samantha Barbas, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (2023), p. 22

2. Samantha Barbas, ‘The Rise and Fall of Group Libel: The Forgotten Campaign for Hate Speech Laws’, Loyola University Chicago Law Journal 297 (2022), pp. 297-340.

3. Beauharnais v. Illinois, 343 U.S. 250 (1952).

4. Ibid.

5. Feiner v. New York, 340 U.S. 315 (1951).

6. Dennis v. United States, 341 U.S. 494 (1951).

7. Anthony Lewis, Freedom for the Thought That We Hate (2007).

8. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime (2004), p. 186. Many of these sentences were oddly indeterminate, hence the wide variation (‘one to fourteen’).

9. Ibid, p. 12.

10. Ibid, pp. 197-8

11. Ahmed A. White, The Crime of Economic Radicalism: Criminal Syndicalism Laws and the Industrial Workers of the World, 1917–1927 (2006).

12. Ibid.

13. Whitney v. California, 274 U.S. 357 (1927).

14. Lewis, Freedom for the Thought That We Hate.

15. Marion Brétéché, ‘Censorship in Europe (seventeenth-eighteenth century)’, Encyclopédie d’histoire numérique de l’Europe.

16. David Hume, ‘Of the Liberty of the Press’ (1741).

17. P.B. Kurland, ‘The Original Understanding of the Freedom of the Press Provision of the First Amendment’, Mississippi Law Journal 55 (1985), pp. 225-58.

18. James H. Read, ‘James Madison’, First Amendment Encyclopedia. https://firstamendment.mtsu.edu/article/james-madison/

19. Lewis, Freedom for the Thought That We Hate.

20. https://press-pubs.uchicago.edu/founders/documents/amendI_speechs20.html

21. Kurland, ‘The Original Understanding of the Freedom of the Press Provision of the First Amendment’.

22. Sandra Davidson, ‘The Rocky Road to Truth as a Defense: Libel Construction in the Nineteenth Century’ pp. 135-60 in An Indispensable Liberty: The Fight for Free Speech in Nineteenth-Century America (2016).

23. Eric Barendt, ‘Freedom of Expression in Nineteenth Century England: Weak in Principle, Robust in Practice’, Scandinavia 58:2 (2019), pp. 29-38.

24. Ibid.

25. Richard Rush, Britain Through American Eyes (1818).

26. Ibid.

27. Barendt, ‘Freedom of Expression in Nineteenth Century England’

28. André Keil, ‘A Very British Dictatorship: The Defence of the Realm Act in Britain, 1914-1920’, First World War Studies 14:1 (2023), pp. 51-70.

29. Lewis, Freedom for the Thought That We Hate.

30. Barbas, Actual Malice.

31. ‘Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling’, The New York Times, 10 October 2024.

32. Stephen J. Shapiro, ‘Comparing Free Speech: United States v. United Kingdom’, University of Baltimore Law Forum 19:2 (1989), pp. 17-20.